CCBJ Spring Edition 2022

Corporate Counsel Business Journal March  April 2022

VOLUME 30, NUMBER 2

Leadership Drives Diversity and Innovation CHRISTINE MCCARTHY, LEADER OF THE PATENT GROUP IN BARNES & THORNBURG’S IP DEPARTMENT, TALKS LEADERSHIP, DIVERSITY AND MANAGING "INNOVATION ON THE FLY."

INSIDE

MANAGING DISPUTES ONLINE ISN’ T NEW TO US.

Leadership Drives Diversity and Innovation

Law Departments: Transformative Change Is Afoot

Creating Value for People to Return to Workforce and For Employers At ® That’s why AAA ’s The Same Time

experienced leaders and secure technology Perspectives from a are enabling parties to resolve cases even now.

Recovering Litigator, Now Turned Board Member

Use Emerging Technology to Advance Strategic Imperatives EXHIBIT A

EXPERTISE Matters. adr.org | +1.800.778.7879 ©2022 American Arbitration Association, Inc. All rights reserved.

MANAGING DISPUTES ONLINE ISN’ T NEW TO US. That’s why AAA®’s experienced leaders and secure technology are enabling parties to resolve cases even now.

EXHIBIT A

EXPERTISE Matters. adr.org | +1.800.778.7879 ©2022 American Arbitration Association, Inc. All rights reserved.

Corporate Counsel Business Journal March  April 2022

VOLUME 30, NUMBER 2

Leadership Drives Diversity and Innovation CHRISTINE MCCARTHY, LEADER OF THE PATENT GROUP IN BARNES & THORNBURG’S IP DEPARTMENT, TALKS LEADERSHIP, DIVERSITY AND MANAGING "INNOVATION ON THE FLY."

INSIDE Leadership Drives Diversity and Innovation Law Departments: Transformative Change Is Afoot Creating Value for People to Return to Workforce and For Employers At The Same Time Perspectives from a Recovering Litigator, Now Turned Board Member Use Emerging Technology to Advance Strategic Imperatives

B

JANUARY • FEBRUARY 2021

In This Issue LAW BUSINESS MEDIA

Kristin Calve

EDITOR & PUBLISHER

Kimberly Fine

MANAGING DIRECTOR PROGRAMMING

AT THE TABLE . . . . . . . . . . . . . . . . . . . 2 Leadership Drives Diversity and Innovation Kristin Calve

Neil Signore

VOLUME 30, NUMBER 2

IDEAS . . . . . . . . . . . . . . . . . . . . . . . . . 27 27 Perspectives from a Recovering Litigator, Now Turned Board Member Sylvia Kerrigan

31 A View from the Top of Wolters Kluwer

Austin Waters

GRAPHIC DESIGNER

MARCH  APRIL 2022

FRONT . . . . . . . . . . . . . . . . . . . . . . . . . 7

SVP & MANAGING DIRECTOR OF EVENTS

Atul Dubey

35 Making Crypto Available to Everyone Tom Davis

Amy Lemel

PULSE . . . . . . . . . . . . . . . . . . . . . . . . .13

OPS . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Jennifer Coniglio

13 Creating Value for People to Return to Workforce and For Employers At The Same Time

39 Use Emerging Technology to Advance Strategic Imperatives

MANAGING DIRECTOR OF CLIENT SUCCESS

VP FOR EVENTS & SPECIAL PROJECTS

Matthew Tortora

Ken Yerkes

SENIOR DATABASE MANAGER

Pat Hanelt

OFFICE ADMINISTRATOR

Rob Williams WRITER

17 Prioritizing ESG: Strategy and Risk Management Tom O'Neil

20 Decoding International Arbitration Luis Martinez & Michelle Skipper

POSTMASTER: Please send address changes to Corporate Counsel Business Journal, 104 Old Kings Hwy N., Darien, CT 06820; by emailing info@ccbjournal.com; or by calling 844-889-8822.

CORPORATE COUNSEL BUSINESS JOURNAL (ISSN: 1073-3000), March/ April 2022, volume 30, number 2.

Published bimonthly by Law Business Media, 104 Old Kings Hwy N, Darien, CT 06820. Subscription price: $110 a year.

Periodical postage paid at Darien, CT, and additional mailing offices.

The material in this publication contains general information, is not intended to provide legal advice and should not be relied on to govern action in particular circumstances. The sources of material contained in this publication are responsible for such material, and any views or opinions expressed are solely those of the source.

Samantha Green

43 Looking into Over $150 Billion of Legal Invoices with LegalVIEW Analytics Nathan Cemenska

46 The Fourth Floor: A Platform for Founders and Funders Breen Sullivan

Kristin Calve At the Table

Leadership Drives Diversity and Innovation

 Christine McCarthy, leader of the patent group in Barnes & Thornburg’s IP department, talks leadership, diversity and managing "innovation on the fly."

CCBJ: What drew you to your current role at Barnes & Thornburg?

Christine McCarthy: That’s an interesting question. I’ve been with Barnes & Thornburg for 15 years, and last year I was asked to lead our patent practice. So until now I was basically riding the bus, but now I’m driving it. I’m fortunate to have a bunch of other experienced people, good decisionmakers all, who were driving the bus before me and who are driving alongside me. But there is a big difference between learning by watching and learning by doing; this is particularly true in leadership. Still, I decided to take the position because I knew that I could make our practice even better than it already is based on my particular perspective.

We’ve been progressing for years—from a diversity standpoint, from a technology standpoint and from an innovation management standpoint—ever since I joined the firm, but we’re now in a position where we can shift and pivot in ways that move us into next levels.

How would you describe your leadership style?

I try to listen more than talk, but I am very direct and will ask hard questions. I don’t think leaders should be afraid to ask “why.” When I ask hard questions, oftentimes I’m not sure whether I’m going to get a single answer or multiple answers, but the whole goal is to drive dialogue from diverse perspectives so that the ultimate answer is fully informed. That is the real value of such discourse.

That approach is very rarely easy and, as a result, somewhat unusual, but it drives the correct answers rather then what seem like the easy ones. We are living in a 24/7 world; a world in which most people don’t have the luxury of talking around certain subjects. But I believe 2

MARCH • APRIL 2022

that when people are honest with themselves and with each other, you can get a ton more done.

Who or what has influenced your leadership style?

That’s a hard question with an easy answer. I’d have to say my both of my parents. My mother was an accountant.

My dad was a rocket scientist. Seriously. And they were Depression-era babies. So everything in my upbringing was about understanding the effects of what you do, and maximizing the benefit for both yourself and those around you. I was taught to “eat your own cooking,” so to speak—

I’d like us to more effectively implement the diversification paradigm that we all say we’re doing already. make sure that you’re doing what you’re supposed to do and don’t have two sets of rules, one for you and one for other people. That leadership style pervades my entire life, both professionally and personally.

I want those around me to be able to put hard questions to me when they think I’m stepping off the right path.

When someone questions your decision-making in a direct manner, it’s an opportunity to make the team better by reaching mutual conclusions through dialogue.

Regarding protection of IP assets, what’s keeping your clients up at night?

I need to take this in parts. First, there’s the, shall we say, “dynamic” global economic situation. Having been in a pandemic for two years has forced our teams, and our clients’ teams, to be separated from one another, both physically, obviously, but also in an emotional and an intellectual sense. That is something that has to be managed. We have had to learn how to adjust our interactions so that people are able to collaborate and invent together when they are physically separated from one another.

Second, supply chain disruptions have forced “innovation on the fly,” meaning our clients’ brightest engineers are sidelined finding short-term workable solutions for shortterm scarcity rather than focusing on industry-shifting invention development. Still further, there is the shift of workflows resulting from going paperless when, for example, patent (and IP law in general) is a fairly paperintensive specialty area. Oftentimes people are printing out documents and spreading them all over a large table so they can understand theoretically difficult technical

concepts. Historically, (in the not so distant past) all of those documents would end up in physical files that were handed from person to person as an indication of who was responsible for the next action for the matter.

But when you’re all working from home, with no paper files being handed around, processes have to change to enable people to understand whether they have the ball or somebody else does. You can appreciate that’s a big issue when you have large corporations with people all over the world. Then there’s the increasing amount of geopolitical unrest right now. Our clients are trying to determine how events in Eastern Europe are going to affect their supply chains, as well as their employees and their families.

I bring that up because patents are one of those things that are specific to a particular country or group of countries.

For instance, if you’re a semiconductor manufacturer and you want to file patent applications in a country where chips will be manufactured, you must stay informed on the present state of affairs in Asia, for instance, as well as consider whether Asia will continue to be the focus for semiconductor manufacturing over the next 20 years.

There is much to keep us all up at night, but identifying the short-term and long-term variables enables management and analysis to push forward and identify plans and goals.

Talk to us about some of the trends you’re seeing in patent applications. What industries have been filing the most patents in recent months or years?

There is an ever-growing amount of patent applications in data-related inventions. In particular, information transfer and management. As businesses and markets have globalized, much more data needs to be managed, analyzed, stored and inventoried to operate within and optimize supply chains so that we can understand and view trends. So there’s a lot of information management-related technology out there these days including data analytics using artificial intelligence (AI). Additive manufacturing technologies also continue to ramp up; that is one area of CORPORATE COUNSEL BUSINESS JOURNAL

3

technology that enables large shifts in how businesses can operate to provide highly customized end products. It is also a particularly disruptive technology for historical market supply chains.

And, of course, given that people have their phones and other mobile devices on them at all times, mobile technologies have become increasingly interesting. There’s a lot of technology underlying the communication that occurs with a customer regarding how they handle their money, order food (or any number of things) online, track their health metrics, interact with transportation, and the like. There’s great deal of innovation in all of those spaces.

Then there are the cutting-edge technologies, such as autonomous driving and electrification of vehicles, and the heavily patented areas like pharmaceuticals.

We’ve noted that the US Patent and Trademark Office is becoming more stringent in the way it wants to see disclosure of materials provided. In the USPTO system, you have to disclose the best mode of an invention in return for your limited monopoly rights; however, sometimes people will try to hold back certain confidential information that they don’t consider to be central to the best mode but may still be technically or commercially valuable. That is a strategically challenging and risky analysis but can be useful. Previously, with softwareimplemented inventions, it was not uncommon for practitioners to not submit actual software code. But the USPTO and U.S. federal courts continue to be more and more stringent when analyzing what we call the invention enablement requirement; so, we are now looking to actually disclose kernels of code that provide a particular implementation of an inventive step to ensure that aspect of the invention is disclosed sufficiently so that one of ordinary skill in the art could practice the invention.

With regard to prosecution—the actual examination of a patent application at the USPTO—like the rest of us, all of the examiners have been working remotely during the pandemic. For some of them, it has really improved their 4

MARCH • APRIL 2022

throughput, based on the numbers of patent applications they’re examining and the response times. Many examiners have become much more efficient and direct in their communication with us, which obviously I really appreciate. Other examiners have remained at the levels that they were at, and some, unfortunately, seem to be really struggling. I suppose that’s not a surprise; we’ve all been affected by the pandemic, but in some surprisingly different ways.

Are there certain USPTO actions that are hindering patent protections for your clients?

I think that the USPTO is doing a really good job of managing their personnel to move through the amount of patent applications that are being filed, resulting in good quality patents. There are some changes that we’ve noticed during the pandemic that maybe aren’t a result of it, but have just happened in the past two years. We’re seeing a rise in more formalistic objections and more format rejections that would not have made it in office actions in the past. But the art rejections are very good, and the quality has been very good. Also, the USPTO examiners have become much more comfortable communicating via phone and email than they were before everyone began working remotely. That’s a welcome improvement.

What changes would you like to see within the legal profession?

As an industry, I’d like us to more effectively implement the diversification paradigm that we all say we’re doing already. We are not doing a good enough job.

The profession is a lot more diverse than it was when I entered it 25 years ago, but it still has a ways to go.

I’m very fortunate that Barnes & Thornburg’s office in Washington, D.C., where I practice, is very diverse. But we’ve worked really hard to achieve that. We don’t view it as a profile. We view it as a choice identifying our team with whom we want to practice law. Sure, there is an

NETWORK The participants in the CCBJ Network demonstrate, through their many contributions, their unwavering commitment to the advancement and success of corporate law departments. The engagement and support of these “partners of corporate counsel” assure we continue to develop and distribute the news and information this unique and sophisticated audience relies on to meet the evolving legal and business needs of their organizations.

Strategic Partners external impact but, for us, it’s about maximizing the benefit for each other and our clients.

Maintaining dialogue in a diverse team requires purposeful engagement. We actively search out subjects that will lead to awkward conversations and ultimately, meetings of the mind. That effort enables a better understanding of each other, regardless of what we look like, or our gender or sexual orientation, or our religion. We actively seek out those discussions. But I think that there is a big chunk of the legal profession that says, “Well, it’s enough that we all look a little different now.” And then there are those who say, “Well, we’re tolerant.” But tolerance is too low a bar. True engagement and optimal team building can only happen when people feel seen and respected and comfortable sharing their diverse viewpoints. It’s not enough that we look different, or that we look different on paper. It’s about providing different viewpoints that can be shared with other people on the team, and listened to, to make the work product better. I don’t think the profession does a good enough job with that. It’s hard. Don’t get me wrong.

It’s really easy to run a meeting when only one person says anything…but why wouldn’t that just be an email? It’s much more challenging to run a meeting where people feel comfortable pushing back on lots of things. But at the end of the day, what you get out of that meeting is a much better work product. I think we should struggle to make it a better work product, even if the meeting is hard.

So share with us—I don’t like to say the best, but the highest-impact—career advice you’ve received.

That actually is from my rocket-scientist father. I was in college and said to him, “I don’t know how many people are going to be in this program and, you know, how do I stand out?” He replied, “Well, you know, there’s always room at the top.” So, in essence, his advice was to just find something really hard to do that you like and other people don’t; do it well and you’ll always have a spot. Eventually the more you work on it, you’ll just keep moving up in the ranks until you get to a point when you’re the person asked to drive the bus. 

Akin Gump Strauss Hauer & Feld LLP American Arbitration Association Barnes & Thornburg Clifford Chance Contract Logix H5 Jones Day McGuireWoods LLP McNees Wallace & Nurick LLC Nuix Weil, Gotshal & Manges LLP

Advisors Computershare Exterro Inc FRONTEO FTI Consulting, Inc JAMS Logikcull Opentext Quovant Wolters Kluwer Legal & Regulatory U.S. Wolters Kluwer's ELM Solutions

Contributors Anderson Kill Fish & Richardson iDiscovery Solutions Neota Logic

Society of Corporate Compliance & Ethics Zapproved

Please help us improve and expand our services to corporate counsel by sharing your ideas with our publisher, Kristin Calve, at 844-889-8822 or kcalve@ccbjournal.com.

CORPORATE COUNSEL BUSINESS JOURNAL

5

MANAGING DISPUTES ONLINE ISN’T NEW TO US. That’s why AAA®’s experienced leaders and secure technology are enabling parties to resolve cases even now.

For over 90 years, the not-for-profit American Arbitration Association® (AAA®) has moved parties toward an efficient resolution to their disputes — even during the most challenging times.

Our people, rules and technology infrastructure have supported parties through crises and natural disasters. Nearly two-thirds of disputes filed with AAA settle prior to the first hearing, many of which without accruing any arbitrator compensation.

To learn more about AAA WebFile®, Fast File, Quick Pay, online case management or virtual hearings or to file a case during COVID-19, visit adr.org/covid19

EXHIBIT A

EXPERTISE Matters. adr.org | +1.800.778.7879 ©2022 American Arbitration Association, Inc. All rights reserved.

6

MARCH • APRIL 2022

Front

Law Departments: Transformative Change Is Afoot

In its 2022 State of Corporate Law Departments report, Thomson Reuters Institute (TRI) looks at CLD performance and the shape of success in a post-pandemic world. “Where 2020 and 2021 saw the emergence of new ways of working rapidly imposed because of the pandemic,” TRI says, “2022 looks to offer the law departments the opportunity to drive positive change for their people and work. The most successful law departments will be those that leverage the momentum of the past two years to actively embrace transformative change, in how they integrate and operate both within their organization and in utilizing outside legal expertise.” One possible reference point, TRI suggests, is a 2021 survey asking outside counsel to review a recent matter and appraise their own performance and that of their client.

“Approximately 1,000 matters were reviewed in this way, and in 90% of cases, opportunities for law department improvements were identified by external firms,” including low-hanging areas of mutual responsibility: pricing, scoping and project management. Visit TRI for the full report.

CORPORATE COUNSEL BUSINESS JOURNAL

7

Briefly Market Research Leader Kristin Luck appointed to Board of Directors Seat at InnovateMR Jennifer Willcox named Senior Vice President, General Counsel and Chief Governance Officer at DanaFarber Cancer Institute Anne Winter strengthens Health Solutions Practice at FTI Consulting Jason Griffith, Deal Lawyer, Joins McGuireWoods’ Global Private Equity Team in Chicago Consilio Announces Launch of Complete Enterprise to Drive Evolution for Legal Operations with Proven Technology and People Solutions Former Assistant U.S. Attorney Andrew Galvin joins Barnes & Thornburg in San Diego Karen Wilson Thissen Named General Counsel of General Mills David T. Hamilton, Esq., Joins JAMS in St. Louis Partner Mark A. Perry joins Weil as Co-Head of Appellate Practice in Washington, D.C. McGuireWoods Advises Wasserman Music in Cross-Border Acquisition of Paradigm Music UK Brian R. Michael Joins Morrison Foerster in Los Angeles Gibson Dunn Adds Private Equity Partner Jesse Myers in Houston Katie Pothier named Executive VP/Chief Legal Officer for New York Mets

Powered by Discover the best from Leading Law Departments, Law Technology Daily Digest, Legal Administrator Daily, Librarian News Digest, and other electronic newsletters from CCBJ affiliate PinHawk.

Design Elements for Attractive Legal Agreements In “4 Ways to Transfer Legal Contracts into a Brand Experience,” Olga V. Mack, CEO and GC of Parley Pro, a contract management company, looks at contracts through an unlikely lens: branding. "As lawyers," Mack says, "you’ll bring the required legal concepts.

Marketers contribute branding guidance, and designers bring visual style. Together, you’ll choose language and design elements to create contracts that unfold as engaging, onbrand, digital experiences. You’ll also help your organization demonstrate its dedication to consumer empowerment while showing off its unique personality."

Source: ACC Docket

In-House Malpractice Insurance?

Why Not? “Law firm lawyers wouldn’t dream of practicing law without having a malpractice policy in place, but those policies are far from ubiquitous among in-house lawyers,” begins this piece from the blog of Woodruff Sawyer, one of the largest insurance brokerage and consulting firms, as highlighted at TheCorporateCounsel.net. So what about malpractice insurance for in-house counsel? The blog provides many reasons safe is better than sorry such as when a fellow employee hits you up for informal legal advice. If she sees you as her lawyer, you could be sued for malpractice. Check out the Woodruff Sawyer blog for more on how these policies work and alternatives, including personal indemnification agreements and D&O insurance.

Source: Woodruff Sawyer blog

8

MARCH • APRIL 2022

Meet the Next Generation of Technophobe In this piece, Jeffrey Brandt, editor of PinHawk’s Law Technology Daily Digest, looks at a law review article that Ralph Losey says is one of the most interesting he’s read in a long time. Robophobia,

by Andrew Wood, in the Winter 2022 edition of the University of Colorado Law Review provides an in-depth analysis of human prejudice against smart computer technologies and its policy implications.

Brandt quotes Losey, a legal tech legend: "Robophobia is the next generation of technophobia, now focusing on the human fear of replacing human decision makers with robotic ones," Losey writes. You’ll have to settle in for a long read – both Losey’s blog post and Wood’s article (16,000 words/308 footnotes) are exhaustive (though definitely not exhausting). Check out Robophobia: Great New Law Review Article – Part 1 at JD SUPRA. Source: JD Supra

Boeing, Theranos, Volkswagen: On Common Compliance Ground In this piece, Gerry Caron, Chief Counsel, Safety, Health & Environmental at Cabot Corp., a Boston-based specialty chemicals company, pulls lessons from the wreckage of three compliance disasters: the misdeeds of former Theranos CEO Elizabeth Holmes; Boeing’s 737 Max debacle; and VW's loony campaign to evade emission standards. All three cases triggered the same “tone-at-the-top” factor cited in the US Department of Justice criminal division’s guidelines for the evaluation of corporate compliance programs. "The emphatic pronouncement from on high (the C-suite) of an ambitious corporate mission, which excluded any ongoing conversation, learning, or feedback during execution, seemingly was the Achilles heel in all three cases,” Caron says. “Compliance culture is critical to the mission of every organization — and an essential part of the in-house practice."

Source: ACC Docket

Nexstar Media Group Appoints Rachel Morgan Executive Vice President and General Counsel Hon. Lorna A. Alksne (Ret.) Joins JAMS in San Diego Weil Adds SEC Enforcement and Securities Litigation Partner Robert Stern in Washington, D.C. Partner Ken Isley joins Corporate Department at Barnes & Thornburg Tech Litigation Talent Ben Au joins Orrick in Santa Monica Office Tax Attorney Sharon Shachar Joins Ballard Spahr in New York Tom Doerr appointed Executive Vice President, General Counsel & Corporate Secretary for Kontoor Brands Generate Biomedicines Expands Leadership Team with Addition of Sean Martin as Chief Legal Officer and General Counsel Michael Conlon Joins AmericanAg® as General Counsel Lauren Goldberg joins Pico as General Counsel and Corporate Secretary Leading Private Equity Practitioner David Cosgrove to Join Dechert’s Charlotte Office Fish & Richardson Obtains Favorable Initial Determination at ITC for Client Quectel Enrique Ubarri expands Financial Services Practice at FTI Consulting Matt Luxton named Senior Vice President & General Counsel at Cubic

Powered by

Colleen Batcheler announced as General Counsel at Hertz

CORPORATE COUNSEL BUSINESS JOURNAL

9

Required Reading Too busy to read it all? Try these books, blogs, webcasts, websites and other info resources curated by CCBJ especially for corporate counsel and legal ops professionals.

Noted Tax and Employee Benefits Attorney John Heber rejoins Manatt in San Francisco Claudius O. Sokenu appointed General Counsel and Secretary at Unisys Alexander Leff expands US Energy & Infrastructure practice at Clifford Chance Tom Bolt appointed Executive Vice President and Chief Risk Officer at AIG Robert Oester appointed US Chief Compliance Officer at iM Global Partner Fund Management Data Privacy Partner Jonathan Ishee joins Health Sciences Department at Troutman Pepper Lourenco Miranda named Managing Director of Environmental, Social, Governance (“ESG”) and Sustainability Solutions at EisnerAmper Neil C. Schur Joins Anderson Kill's Litigation Group as a Shareholder in Philadelphia Arjun Kampani appointed General Counsel at Rocket Labs Elizabeth K. Vonne named Executive Vice President, General Counsel and Corporate Secretary at Advanced Energy Maria Montenegro named SVP Strategy & Innovation at Wolters Kluwer Kathleen Sweitzer Joins Trustmark as Senior Vice President and General Counsel E-Discovery Expert Stuart Craft joins FTI Consulting as Managing Director in Technology Segment

SUBMIT YOUR ANNOUNCEMENTS TO editor@ccbjournal.com

10

MARCH • APRIL 2022

COLUMN: In Practice

For its monthly column, In Practice, the Thomson Reuters Institute turns to Rose D. Ors, CEO of ClientSmart, an accomplished storyteller who is a Fellow with Berkeley Law’s Executive Education Program. According to TRI, “Rose is a study in the power of creative reinvention. Since graduating from Berkeley Law School in 1983, she has practiced law, led the sales effort at a large law firm, launched two successful businesses inside and outside the legal industry, and served on a several non-profit boards.” In her latest piece, Rose interviews Bjarne Tellmann, SVP and GC at GSK Consumer Healthcare and author of Building an Outstanding Legal Team, and digs into a topic – law department strategy – that does not get enough attention. “The overarching goal of having a strategy is to articulate how the department will add value to the enterprise,” Tellmann tells Ors. “The process by which the plan is developed is the most disciplined and data-driven exercise to align the legal department’s goals with the company’s strategic objectives. The product of the exercise — the strategic plan — is the roadmap that guides and keeps the legal team on track by memorializing the department’s goals, while identifying the types of resources needed to meet the goals and the metrics to gauge performance against the goals. The plan also provides the legal team with a detailed picture of how their role matters.”

BOOK: Running Legal Like a Business This book, published by the Practising Law Institute, contains 21 discrete articles, authored by a variety of well-known thought leaders in the corporate legal ecosystem. It was pulled together

by Connie Brenton, VP, Law, Technology and Operations at NetApp, and Susan Raridon Lambreth, a principal with LawVision. Like most compilations, this one is a bit uneven.

Nevertheless, there is enough meat here for a satisfying meal. In fact, the first piece alone is worth the price of admission. It’s by two legal ops superstars, Brenton and Jeff Franke, founder and CEO of LegalOps.com, each of whom were major contributors to the development and growth of the Corporate Legal Operations Consortium, a/k/a, CLOC. Brenton tells the tale: “Jeff Franke and I conceived the general business model, objectives, structure, and development plan for CLOC in early 2015. After floating the idea to legal operations colleagues at a regular, monthly meeting I held for legal operations professionals on the West Coast (which received a mostly icy reception), Jeff and I pushed forward with the plan anyway. We pulled in six or so legal operations colleagues at major West Coast high-tech companies to serve on the Board of Directors and to provide some help running the business. None were too eager to join . . .” And, with that inauspicious beginning, on January 1, 2016, CLOC was born.

Contributors Thanks to the law firms, technology companies, alternative legal service providers, management consultants and other supporters of corporate law departments who share their insights and expertise through the CCBJ network. Your parti­cipation is appreciated.

Nathan Cemenska is the Director of Legal Operations and Industry Insights at Wolters Kluwer's ELM Solutions. He previously worked in management consultancy helping GCs improve law department performance and has prior experience as a legal operations business analyst.

Tom Davis possesses almost three decades of experience as an accomplished attorney, FBI Special Agent and fraud prevention and AML/KYC compliance expert. Tom Davis is Coinme's first General Counsel and Corporate Secretary.

Throughout his career, he’s held leadership positions at legal and technology firms to combat financial crimes and direct legal compliance.

Atul Dubey is the head of Wolters Kluwer’s Legal and Regulatory U.S., a leading provider of information and expert solutions for legal and business compliance professionals.

In this role, he focuses on growing the business by driving increased relevance for customers through digital products and expert solutions leveraging technologies like NLP/AI and modern workflows.

Samantha Green is the Director of Content Marketing for Epiq.

She serves as a subject matter expert on all aspects of electronic discovery, data privacy, and cybersecurity, drawing on her twenty years of litigation and consulting experience. She has provided over a hundred CLEs on topics relating to eDiscovery, litigation readiness, international data privacy, among many others.

Sylvia Kerrigan has over a decade of experience in the board room as a director and former executive for the industrial, transportation and energy sectors. In addition to her leadership roles at various capitalintensive enterprises, her board expertise includes environmental, social and governance (ESG), regulatory, risk management, cybersecurity and information privacy matters.

Luis M. Martinez is Vice President of the International Centre for Dispute Resolution, (ICDR) the international division of the American Arbitration Association, (AAA) and is an Honorary President of the InterAmerican Commercial Arbitration Commission, (IACAC). Luis serves as an integral part of the ICDR's international strategy team and is responsible for international arbitration and mediation business development.

Christine McCarthy is the leader of Barnes & Thornburg's Patent Practice Group and chair of the firm’s Telecommunication Industry Group, Christine McCarthy has extensive experience working in private, government and legalservices sectors. Her globally based and invested clients benefit from her counsel on virtually all aspects of intellectual property including patent, trademark, copyright, trade secret, Internet law and copyright and patent licensing.

Tom O’Neil is a highly respected corporate director and advisor with broad private and public sector experience, including leadership roles in boardrooms and C-Suites in the consumer, financial services and healthcare sectors.

Tom has an exceptional track record of accelerating cultural transformation and restoring trust with investors, regulators and enforcement officials.

Breen Sullivan is the Founder and CEO of The Fourth Floor, a new kind of tech-enabled community for women founders, board candidates and investors on a mission to drive systemic change by getting women onto the boards and cap tables of women-led startups.

Ken Yerkes has been an active litigator and trial attorney with numerous reported decisions that illustrate his effective collaboration with clients in planning and executing the right strategy at the right time. On those rare occasions when summary judgment or an acceptable settlement are not forthcoming, Ken is willing and able to take the case to trial and has done so successfully in multiple jurisdictions Reach him at ken.yerkes@btlaw.com

Michelle Skipper is Vice President for the Commercial Division at the American Arbitration Association in Charlotte, NC. She received her undergraduate degree in Finance from the University of Texas – San Antonio and her M.B.A. from the McColl Scholl of Business at Queens University in Charlotte, NC. Michelle is responsible for the case management of large, complex commercial arbitrations for the mid-Atlantic regions.

Want to become a Contributor? Contact our editor & publisher, Kristin Calve at kcalve@ccbjournal.com CORPORATE COUNSEL BUSINESS JOURNAL

11

Questions about your eDiscovery program?

What is our total cost of ownership?

Can our discovery processes improve?

Where are the quick wins?

Can we better allocate our resources?

Are there hidden costs in outside counsel invoices?

How does our program maturity compare to our peers?

Discovery Health Check delivers answers Operational and financial assessment Holistic view of your program Strategy to optimize human and technology resources Long-term, mid-term, and short-term goals 15%-30% reduction in your Discovery spend

epiqglobal.com 12

MARCH • APRIL 2022

Discovery Health Check The road to your eDiscovery center of excellence

Pulse Creating Value for People to Return to Workforce and For Employers At The Same Time KEN YERKES BARNES & THORNBURG  Ken Yerkes, partner, Barnes & Thornburg, discusses how traditional labor law viewpoints have morphed with the downturn of unions and the effect of COVID-19.

OSHA’s Emergency Temporary Standard (ETS) requiring employers with 100-plus employees to have their employees either be fully vaccinated or subject to weekly COVID-19 testing has been a hot topic. The Supreme Court recently blocked the ETS. What is your response to the ruling, and what does this mean for employers?

Ken Yerkes: While the ruling certainly provided a great deal of relief of to many employers, I was not terribly surprised by the decision. The Supreme Court made it all but clear that OSHA overstepped its authority when it issued the ETS. Significantly, the court did not limit its analysis to the unique standards governing an emergency temporary

standard, but its ruling reaches beyond that. The court explained that OSHA’s rulemaking authority falls under the general umbrella of regulating workplace hazards, and in the court’s view, COVID-19 is not unique to the workplace.

The Supreme Court’s ruling reinstitutes a forceful stay and prevents OSHA from enforcing the ETS. Employers are no longer required to comply with the ETS requirements, including vaccination policies and weekly testing requirements. Employers who already undertook efforts to impose such requirements now have the option to pause or roll back those requirements.

Given the Supreme Court’s decision, how should employers move forward?

What I’ve told clients is that they need to think first about what is best for their organization—not from the standpoint

CORPORATE COUNSEL BUSINESS JOURNAL

13

of “What do we think we’ll have to do regarding whether the injunction is permanent or not,” but “What do we think we should do given our workforce and our point of view with respect to mandatory vaccinations?” I’ve had numerous employers tell me, “We’re going to do the right thing, whether or not the government tells us to.”

There are other employers that will say, “I’m going to be very thoughtful about what I do because I don’t know that I have leverage to mandate a vaccination” or “I don’t know if I’ll have a workforce if I try to mandate.” Factoring in opportunities for people to change jobs (even though they may face some of the same challenges with respect to vaccination), there are easily 20 percent to 30 percent of workers in the manufacturing, warehousing and logistics arenas that are unpersuadable. I would include healthcare workers in that as well. With respect to that cohort, you need to think about whether you have the ability, in the absence of a federal mandate, to push forward with an aggressive vaccination agenda. If not, you now can plan for a different approach than the ETS would otherwise require.

I’d also ask the question, “Are we going to treat management and hourly workers the same?” In companies where the hourly workforce has leverage because the employer can’t operate without them, or where there is a unionized workforce, an employer mandating vaccines or testing for its white collar or management employees but not for its hourly workers must ask itself “What signal does that send? If I’m only able to get my white collar managers vaccinated, but walk away from my hourly workforce, what am I accomplishing?”

Don’t view this as “What is the government going to tell me I have to do?” but rather “What do I think is the right thing to do for the company and for the health and safety of our employees?” Now that OSHA’s ETS has been blocked, you’re going to want to think about the types of policies and protocols needed to protect workers, not to be strictly compliant with the ETS. In other words, to ask yourself what are we currently doing in our COVID-19 safety plan and what changes, if any, are needed? These

14

MARCH • APRIL 2022

are the questions that need to be asked and the sort of spadework that can be done.

What is the status of the federal contractor mandate?

As with the other federal vaccine mandates, numerous lawsuits have been filed to attempt to block the Executive Order imposing a vaccine mandate on federal contractors.

Several injunctions are currently in effect, and at least one of which is applied on a nationwide scale.

As the litigation advances, the challengers face a key distinction from the ETS mandate – one based on contract.

The federal government historically has been given wide berth by courts in determining the conditions it can impose on private employers who want to do business with it. And the view is that, theoretically, an employer doing business as a federal contractor is doing so of its own accord. You either take the contract with the conditions that the federal government assigns, or you don’t.

Conversely, as it did with the OSHA ETS, would the Supreme Court reach a similar conclusion for the federal contractor mandate? If the federal government is limited

How best to represent your company on mandatory vaccinations with a division of labor between hourly and salaried workers? in the terms it may impose for its contractors, would vaccine requirements designed to reach a public health goal be beyond its authority? It’s a different analysis and it has led to differing conclusions. If I’m a federal contractor subject to the mandate, I am clear that my contractors and I are going to have to comply, because without federal contracts, we’re not in business. So you have a way to get a little bit more traction if you’re a federal government employer with a mandate.

What are some other COVID-19 concerns for employers with unionized shops?

The primary concern is the bargaining obligation imposed by the National Labor Relations Act for the effects of an imposed rule or an action. And that bargaining obligation is being viewed quite expansively by the current National Labor Relations Board. The NLRB’s general counsel has issued a memoranda clearly communicating to the employment community that the board will expect employers to come to the table on a host of issues, from discipline, job security and safety to leave for obtaining the vaccination, costs of testing—a very hot topic—and procedures for testing the unvaccinated. It’s just a surface description of the types of issues that a union would likely raise. Bottom line: Employers have far less flexibility when dealing with a bargaining unit than with a non-organized workforce. You want to make sure that you follow the process to a T, or you will end up with an unfair labor practice charge for failing to appropriately deal or bargain with a union over COVID-19 issues.

As you look at COVID-19 concerns, you need to appropriately assess the risk as well as how far you can push, and what

leverage you have over, the union. We talked about leverage earlier for all private employers, but there are other leverage points specific to union shops, including how strong it is, how likely it can lead, and your internal consistency and alignment as a management group on some of these key bargainable issues. You may recall that Tyson Foods, which ended up on the front page of the Wall Street Journal, is an example of a company that was able to successfully negotiate the implementation of its mandatory vaccine policy with its various unions. You do not want to get over your skis and act before you’ve met all of the appropriate standards under the NLRA. You’ve had a long and distinctive career in traditional labor law. What is different now about union negotiations vs. when you began? And what is the same?

I started doing this back in the early ’80s and coming out of the ’70s there was a great deal of labor-management warfare, with strong ideological lines being drawn. Many of the most important, heavily unionized employers were in urban areas or in areas where unions had held sway over many years. There was a very us vs. them approach to negotiations and unioncompany relationships. Unions at that time had a greater percentage of the workforce and a lot more leverage than today.

At one point, unions represented more than 20 percent of the workforce in some states. Today, on a national basis, privatesector unions represent only 6 percent of the workforce.

Today, the relationships between the unions and companies I work with are much better. The parties do not start off assuming there will be war, but rather looking for ways to find solutions and common areas where they can reach agreement.

Certainly, wages and legacy benefits, such as pension and retiree health, remain strongly contested at the bargaining table. But the discussion is driven more by economics than ideology; and cost and capability, as opposed to moral obligation, which makes it a little easier for the parties to have a rational debate.

There are positives to take away from both eras, but on balance, the management-labor relations are more cooperative than they were in the past.

CORPORATE COUNSEL BUSINESS JOURNAL

15

One other thing. Beginning in the ’80s, companies began moving out of those high-union-density areas and into more rural environments, particularly in the South. In doing so, they brought prosperity to communities that didn’t previously have it (as opposed to areas where they had always had it and just wanted more). Being more positively received also had an impact on the overall tone of employeremployee relationships as we progressed into the late ’90s and 21st century.

What regulations do you think employers will find most challenging going into 2022?

On the COVID-19 side, with the ETS sidelined and with Centers for Medicare & Medicaid Services regulations mandating healthcare workers to get vaccinated moving forward, you’re going to see the continuation of efforts to manage COVID-19 through the employment relationship. Now that the ETS is enjoined, government attempts to control coronavirusrelated restrictions will continue in a patchwork Ken Yerkes has been an active fashion at the state and litigator and trial attorney with local level in 2022. numerous reported decisions that illustrate his effective collaboration with clients in planning and executing the right strategy at the right time. On those rare occasions when summary judgment or an acceptable settlement are not forthcoming, Ken is willing and able to take the case to trial and has done so successfully in multiple jurisdictions Reach him at ken.yerkes@btlaw.com

16

MARCH • APRIL 2022

Another regulatory area of greater concern from an employer standpoint is the NLRB general counsel’s open solicitation of cases that can be prosecuted to change the prior board or boards’ rule of law.

The current NLRB has a more aggressive view

of labor’s place at the table and is openly looking for ways to maintain its relevance into the immediate and long-term future. In other words, if only 6 percent of the total workforce is unionized, that means 94 percent is not represented by unions. How can the board: 1) make it possible for that 6 percent to have greater power and/ or 2) create an environment where the other 94 percent receive greater attention from, and are accorded greater rights by the NLRB, than they’ve enjoyed in the past?

One approach would be through actual rule-making that could create advantages for unions that have been disadvantaged by the slower and more cumbersome litigation model. This pivot would strike at the core of employers’ ability to manage its workforce in the way it has of late.

How do you view the ‘Great Resignation’ and why are employers having a hard time finding workers, particularly in the restaurant and logistics fields?

You’ve got a couple of things going on. Up until September 2021, you had generous unemployment compensation benefits that served as a disincentive for people to look aggressively for work. And while I think we’ll see a steady increase in job-hunting over time, many people have gotten out of the habit of work, particularly in fields such as restaurant and logistics where wages and benefits were low relative to other markets. These sectors have also become less attractive because the high-density contact with customers raises fears of COVID-19 infection and because they are now competing with sectors offering fully remote or hybrid remote work, which is particularly appealing to employees with kids.

We must put the right incentives in place to encourage people to return to the workforce, creating value for them and for employers at the same time. While wages are up and that’s been a positive, inflation has prevented what should be a net boondoggle for employees. Perhaps if inflation eases and there really is some meaningful impact of those wage increases, we’ll see people go back to work. 

Prioritizing ESG: Strategy and Risk Management TOM O'NEIL BERKELEY RESEARCH GROUP

 Tom O'Neill, a highly respected corporate director and advisor with broad private and public sector experience, including leadership roles in boardrooms and C-Suites shares his insights on how organizations are leaning into ESG as a high priority for both ethical and risk management priorities.

CCBJ: Tom, how does the approach to ESG compliance differ based on an organization’s size, maturity, and industry? And when should a board retain outside ESG expertise or launch an oversight committee to get involved in these initiatives?

Tom O’Neil: It is important to take a step back, unpack ESG, and understand the trajectories of those three pillars— environmental, social and governance—which have now coalesced to become a north star for most organizations.

For many companies, environmental was historically seen as primarily an area of risk and governance was viewed as the capstone of a compliance program. While it was not always well defined, it has been a key focal point since the beginning of this millennium. The more inchoate pillar is the social dimension. Within the past few years that dialogue has elevated in importance. But it is through the combination of those three pillars that, collectively, they have become a north star for many organizations. They are now viewed more holistically—not to use a hackneyed phrase, but from a cohesive perspective.

Today, organizations are focusing on ESG as both a strategic imperative and an area presenting risks that must be mitigated. What is heartening to me is that there has been a fast-emerging consensus that organizations that prioritize ESG can become more successful in the marketplace; it can be a competitive differentiator. So, the size of the organization, its maturity, its external stakeholders, and the industry in which it competes will all dramatically affect how the enterprise analyzes and prioritizes ESG.

Insofar as the board is concerned, the way I like to think about it is that management is always primarily responsible for developing and successfully implementing a strategy.

ESG is now viewed as a key element of a strategy. Also, many companies view it as a strategic imperative – not just an “option."

The board’s responsibility is to oversee and pressure-test the strategy that the management team develops to be sure it has a strong prospect of being successful, and then to monitor and oversee its implementation. You have to differentiate between the two roles.

The social dimension is the one that has brought the holistic concept to the table. Regarding the social piece, human resources departments historically focused on the need to prioritize diversity, equity, and inclusiveness. But now, with the merging of the three pillars into a powerful guiding star, boards are leaning in to make sure that the management team is in fact doing that. And, increasingly, boards are considering benchmarking data and asking management teams to deliver on their promises.

I believe it is a new era from the perspective of governance.

But many companies and organizations, in various industries, have been dealing with one or more of the three pillars for a long time.

How has the emphasis on ESG forced or incentivized boards to focus on board composition, succession planning, and differing perspectives around the table, and to consider new governance models?

In terms of the impact in the board room, it is obviously something that boards expect a management team to have well in hand. That said, when you look at a board’s oversight responsibilities, the question arises, “How can the board effectively fulfill its oversight responsibilities and therebyf its fiduciary duties?” The answer varies dramatically based on the industry, but as a general matter, it certainly is a common topic in boardrooms these days—whether CORPORATE COUNSEL BUSINESS JOURNAL

17

the board has sufficient expertise to fulfill its oversight obligations. The two ways a board can address a gap are first, to recruit a new member and second, to consider hiring an external expert as an advisor. I am seeing both in the governance world right now. As to how a board oversees the fulfillment of the ESG strategy, the question has arisen whether a board should create a separate oversight committee. That certainly can make sense if a board is large and is a huge global public company; the concern becomes that the board does not have sufficient room on its quarterly agenda to grapple with ESG. In many settings, it has become a best governance practice to delegate to a board committee certain oversight responsibilities. For example, audit committees historically have also taken oversight responsibility for the organization’s enterprise risk management program, including whether the process is being handled properly and whether the risks are being effectively mitigated.

Similarly, in healthcare and financial services, there is a now well-established best practice of forming a compliance

committee, to ensure that the board’s oversight of the compliance and ethics program is robust. In the same vein, some boards are establishing ESG oversight committees.

My own view is that because ESG is so interdisciplinary and because it’s critical that the entire board fully understand the management team’s strategy, you’re often better advised to not delegate the oversight responsibility to a board committee. But if a board decides to form an oversight committee, it’s critical—because ESG includes risks and strategic opportunities—to ensure robust communication between the committee chair and the board so that information isn’t inappropriately siloed. It isn’t acceptable for a director who is not on the oversight committee to not fully understand what the organization is doing.

Why does the board need to be surgical in its approach to ESG? Is it a question of compliance with regulations?

Fulfillment of stakeholder expectations?

I would not characterize it as “surgical.” I think the better term is that the board must be “fully informed,” both factually and legally and from a regulatory perspective, as well as highly engaged, but without inappropriately performing management functions. Before ESG became such a critical area of governance focus, boards typically were better versed in one or two of the pillars, but not all three.

Now, because of the lens through which these issues are being monitored and analyzed, all the major thought leaders in the governance field are doing everything they can to educate directors of private companies, public companies, and nonprofit organizations, so that they have a fundamental understanding of what it all means, and how best to address it in the context of their organization’s realities.

What goes into a board self-assessment program and how can it be used more effectively or efficiently?

That’s something I feel pretty strongly about. To set the table for that discussion, best practices in board selfassessments have varied dramatically over the past 25

18

MARCH • APRIL 2022

It’s very clear to me that the trend now is toward a more robust selfassessment process. years, depending on the industry and the size of the company, and whether it is private or public. In some spaces in the financial services industry, there have been very specific mandates for conducting self-assessments by boards, such as that they are performed annually to ensure that the board is dedicated to continuous self-improvement.

In most other industries, while it has not been a regulatory imperative, over the past 10 years—I think it started really with the Sarbanes-Oxley expectations of audit committees and public boards— it has been moving in that direction.

If you were to do a survey today of small private and midcap companies, I wouldn’t be surprised if you found that many boards use questionnaires on an annual basis to guide the discussion of the entire board, to address a myriad of topics, including how well-prepared board members are for the meetings, how engaged each director is and, generally, whether they are fulfilling all their responsibilities. At the other end of the spectrum in terms of sophistication, you have boards that are addressing this topic more frequently than once a year; some boards are seeking written affirmations from their directors about their level of engagement over the entire year and pushing educational initiatives throughout the year to ensure that the directors keep pace with changing internal and external environments.

So, it’s very clear to me that the trend now is toward a more robust self-assessment process. And as is often the case, smaller and less-well-capitalized organizations look to larger, and often public, company standards for guidance and emerging best practices, and then tailor those practices to their own organization. There are outside experts who are now assisting boards as discussion facilitators and, even more importantly, thought partners on how

to implement and measure the effectiveness of a new governance model. I think this is a topic that will continue to be a very, very high priority for all companies moving forward. And as I said, my own view is that it dates back to roughly the early aughts, when a spotlight was shone on the board in a number of different corporate scandals.

How have ESG demands impacted board members’ compensation?

In my experience, I would say at most indirectly. When you discuss the board’s compensation, it is usually set based on several considerations. I think that ESG demands are impacting the compensation of management teams and senior leadership teams more than directors because, as I said, it’s become a critical strategic imperative, and if it’s not fulfilled, the company doesn’t flourish and concomitantly is exposed to unacceptable risks. So, boards tend to be measuring the leadership team’s fulfillment of its ESG responsibilities, particularly the CEO when setting her salary, but I don’t find that it’s a direct consideration when you talk about annual compensation for directors.

Now, hypothetically speaking, if an organization were to fail miserably in fulfilling its ESG strategy, including exposing Tom O'Neil is a highly respected shareholders and others corporate director and advisor with to unacceptable risks, it broad private and public sector experience, including leadership certainly is conceivable roles in boardrooms and C-Suites that the board would say, in the consumer, financial services “We have not fulfilled our and healthcare sectors. Tom has oversight responsibilities, an exceptional track record of accelerating cultural transformation and therefore, that should and restoring trust with investors, be a material consideration regulators and enforcement officials. when we set our own Reach him at toneil@thinkbrg.com compensation.” 

CORPORATE COUNSEL BUSINESS JOURNAL

19

Decoding International Arbitration LUIS MARTINEZ & MICHELLE SKIPPER AMERICAN ARBITRATION ASSOCIATION

 Luis Martinez and Michelle Skipper share their experience and insights into the international arbitration landscape, as well as best practices and resources for writing writing arbitration clauses.

DISCLAIMER: The opinions and views expressed by Ms. Skipper and Mr. Martinez are not necessarily attributable to the AAA or ICDR. CCBJ: Let’s start off with how you got into arbitration.

Michelle Skipper: Prior to joining the American Arbitration Association, I spent over 20 years in healthcare administration. I held various leadership positions at hospital networks and physician provider groups. The last position I held was executive director for a private physician group in Charlotte, NC, consisting of 25 providers, 10 offices and a several hundred employees. I knew I was interested in remaining in healthcare when, 15 years ago, an opportunity to join the AAA came my way. It allowed me to leverage my professional expertise in the healthcare and life sciences space, as well as my undergraduate degree in finance and my MBA. Luis Martinez: I was actually the first attorney hired by the AAA for its international division, the ICDR when it was created in 1996. I have been focused on the ICDR’s international arbitration and mediation services ever since.

I also work with one of our Director’s based at our Miami office on a number international cases and I am responsible for business development in South and Central America, the Caribbean, the East Coast of the United States, and Europe. It’s a very interesting geographical spread that keeps me occupied.

Why do life sciences disputes in particular lend themselves to arbitration or mediation?

Martinez: These cases can be highly complex and involve huge multinationals with global contracts and disputes based on large monetary claims and may include IP issues.

20

MARCH • APRIL 2022

One of our often made recommendations is the idea that you should really give some forethought to your exit strategy should a deal not go as planned. We understand that this is not the thinking as business users are usually anticipating that the venture will be successful and do not want to derail their spirit of cooperation. Given that, any dispute resolution provision tends to be briefly discussed near the end of the negotiation phase and sometimes a clause or an arbitration agreement might be brought in and pasted from an old contract or book without thorough analysis. However, particularly in an international setting, you really need to consider some of the real-life implications of how you are going to handle a dispute should it in fact arise.

First, you are looking at a neutral forum and you may be hoping to avoid the local courts where the other side is located and unfamiliar legal systems and practice.

The companies involved in these cases could be large multinationals that are very powerful in their respective countries and jurisdictions. You want to have an exit strategy that provides for arbitration where no party has a home court advantage thereby having the dispute placed in neutral forum. Other factors to consider that are very important for life sciences disputes is the need for independent and experienced arbitrators. One of the ICDR’s core components of its international arbitration and mediation services is the idea that global expertise matters and you need experienced alternative dispute resolution (ADR) professionals available to be selected for these cases.

We have panels of international and domestic arbitrators and mediators in place that have been vetted and we’ve identified and have reviewed members’ qualifications to make sure that they are in fact indeed subject matter experts in the particular cases to which they’re going to be assigned.

That expertise really translates and impacts the process very positively, since they know the types of disputes and have industry backgrounds. When a dispute is brought before them, they can drill down and understand where the process may have broken down. They can use their experience to move the matter forward quickly, asking the parties to focus on particular aspects of the case that they know are going to be important in determining their eventual award. We

know this because when we receive their awards we see their experience through and the quality of their analysis of the case and application of the law.

An arbitration or mediation does not happen in a vacuum.

It starts with the arbitration clause that was included in the contract, negotiated and agreed to by the parties. We apply the terms of that clause to the letter as any failure to do so could result in an attack on any award issued later on. There is an element of predictability here if the parties have considered in advance how they wish to proceed if a dispute arises. They are uniquely positioned to negotiate the clause considering the types of disputes they have seen in the past and can draft accordingly. By selecting the ICDR’s arbitration rules and administration, they also know the consistent policies and procedures that will be followed by the administrator should a dispute arise. Then there are no surprises and everyone knows how their international dispute will proceed.

In addition, pursuant to the ICDR’s international arbitration rules the proceedings are private and confidential and both the ICDR and the arbitrators are required to abide

by those requirements. The confidentiality provisions are listed in the rules. Arbitration or mediation can also be very expeditious with a number of mechanisms available pursuant to the rules to save time and costs. The rules allow for procedural flexibility and they can be customized by the agreement of the parties. For examples, the parties can agree to proceed under the ICDR’s expedited procedures, they can agree to a sole arbitrator, they can agree to holding any hearings virtually or can agree to waiving all hearings and proceeding based on the submission of documents only.

Also, and this can’t be overstated, international arbitration awards, unlike judgements that you receive from courts, are backed by a global network of international treaties for recognizing and enforcing them, such as the New York and Panama Conventions where, let’s say an award that’s issued in New York against a party that has assets in New York, France and Brazil, that can award be enforced in those three jurisdictions simultaneously because all three countries have agreed to respect and enforce international arbitration awards issued in other jurisdictions via a rapid confirmation proceeding.

CORPORATE COUNSEL BUSINESS JOURNAL

21

Skipper: In addition to highlighting the importance from an international perspective, when we look at the issues from a domestic perspective and why you might arbitrate and/ or mediate life science disputes, we have found clients are really look for subject matter expertise, as opposed to going to a judge that has general knowledge, because these are very, very complex disputes, such as a royalty issue relating to research-and-development funding, or an issue arising from development of some new drug or product where it’s important to have an arbitrator that has spent time in the field. Ours are not just lawyers. Some are scientists. Some are PhDs. And some also have a legal background. But it’s important that if these individuals are going to be making binding decisions, they bring the expertise to provide a fair, efficient, cost-effective resolution.

Martinez: Specifically regarding international disputes, ClauseBuilder starts you off with short model clause you can find in the international rules. We recommend that you specify the number of arbitrators, whether you want a sole arbitrator or a tripartite panel; the place of arbitration, which is important in the international arena for procedural and enforcement implications; and the language. From there, you can decide what other options are appropriate for you, such as whether you want to proceed under the expedited procedures, or a specific set of credentials for the arbitrator, such as industry expertise or international experience, there are q number of options available. After going through ClauseBuilder you really understand all the parameters and issues that go into drafting and fashioning your international arbitration agreement for your particular dispute.

Martinez: One more point on the enforceability in the international context. With many countries becoming parties to these international treaties, which provide for the relative ease to enforce these awards and how difficult they are to challenge, this contributes to a high rate of voluntary compliance. In over 80 to 85 percent of cases, the parties voluntarily comply because they know how difficult they are to challenge in them in the courts.

What are you seeing in terms of technology and virtual hearings?

Do you have any specific observations/suggestions regarding arbitration clauses?

Skipper: Speaking domestically, when you’re going to request binding arbitration, use the standard language.

The AAA has made available a free clause builder tool that any person can use to develop a very specific clause.

Available through www.clausebuilder.org, this free wizard allows you to choose the type of clause that you want, customize it to meet your needs, review it and then you save it. This clause builder is available 24/7 and can be used as often as one wishes. Whenever counsel ask us what’s the best language, we refer them to this free tool, which can be used in both domestic and international settings, depending on the wording you choose. Want to incorporate mediation? It gives you that option as well. It’s a very comprehensive tool and we really try to encourage clients and counsel to utilize it.

22

MARCH • APRIL 2022

Skipper: It’s been an interesting time no doubt. The pandemic required everyone, including the AAA, to pivot.

But the beauty of arbitration and mediation is the pivot didn’t require a whole lot of work. Unlike the courts, which had to physically shut down because all of the work they do is in person, on the mediation side pivoting to a Zoom type platform was relatively simple. We quickly created model orders and guidelines for utilizing a Zoom platform. On the arbitration side, we quickly converted in-person hearings to hybrid or fully virtual ones.

Through last year we had almost 15,000 total events and, of those, just under 8,000 were virtual. Early on in 2020, the parties and counsel were somewhat skittish. But now, even with offices and states having formally reopened, virtual events remain attractive to counsel and to parties because of the efficiencies and cost effectiveness. Many domestic arbitration hearings are moving forward with some form of a hybrid arrangement; maybe counsel are together but arbitrators or witnesses are in different places.

I don’t think virtual hearings are going away. Instead, they are going to be an option; an alternative to having everything in person. Virtual hearings also mean you can choose mediators and arbitrators from across the country

(or globe) without incurring the travel expenses that might have made them cost-prohibitive.

Martinez: We are hearing from our in-house clients that they like the opportunity to be able to attend these hearings virtually, as before the in-person option was limited due to the travel expenses. They certainly appreciate the minimizing of costs and the time needed for travel along with the related expenses of an international arbitration.

They are more amenable to joining in status conferences and taking advantage of the other procedural efficiencies made possible by remote technology. Certainly for an international case and with parties all over the world, the increase and use of the virtual hearings has had a significant positive impact. I think virtual hearings are here to stay.

That said, I also think that in larger cases, the hearing on the merits will probably take place in person or in some hybrid form and we are seeing that return already.

What is the importance of your advisory committees and client feedback?

Skipper: These are really a critical aspect for AAA, both

domestically and internationally. Back in 2009, the Association created a healthcare advisory committee, and about three years ago the committee created a subcommittee focused on life sciences with the goal of identifying experts in the pharmaceutical, medical device and biotechnology sectors who could advise us on their industries’ needs.

An area of focus early on was the need to really have subject matter experts on the life sciences national panel, and not people who maybe mediated or arbitrated one life science case but legal professionals who have spent at least 10 years devoting at least 50 percent of their time to the life science space, or life science professionals with a PhD and a background in academia, industry or government. These are the criteria that individuals should hold to provide fair, efficient, effective resolution. We even have a supplemental form that an arbitrator can complete so their resume highlights this expertise.

We also take client feedback very much to heart. At the end of every mediation or arbitration case, we survey the end users about their experience, their case administrator

CORPORATE COUNSEL BUSINESS JOURNAL

23

and their arbitrator or panel. Did they utilize technology efficiently? Did they have the experience the parties were looking for? Did they apply the rules appropriately? Did they arrive at the right decision?

In addition to surveying clients, we also ask case administrators how arbitrators managed their cases (because we know what’s needed/expected from a managerial arbitrator’s perspective), and use that feedback to manage and review arbitrators on an ongoing basis. As we tell all our arbitrators and mediators, “Just because you’re appointed to a panel does not mean this is a lifetime appointment.” While we take all client feedback seriously, we also recognize that there may be some sour grapes, which is why we don’t just survey clients, but also survey the case administrator, who is neutral as well as knowledgeable about arbitration management.

When you couple an advisory committee with client feedback, we think the result has been fair, cost-efficient resolution of domestic and international life sciences disputes.

CCBJ: How do you appoint your arbitrators and select your seat for the arbitration?

Martinez: As far as being added to the international or the life sciences panel, you’ve already heard some of the description. Our international panel application can be found on our website at icdr.org. As to how these arbitrators are appointed for a particular case, it depends on whether a method of appointment was included in the arbitration agreement. For example, a party can decide to use the partyappointed method, where each side appoints their own arbitrator, who still has to be impartial and independent; and those two can then appoint a presiding arbitrator.

Alternatively, you can use the list method. If your clause is silent, the ICDR’s international rules’ default mechanism is the list method. We will have an administrative conference with the parties early on, at which time we would note that their clause is silent and that we are using our list method. We ask each side to give us their views as to the qualifications we should consider for any prospective arbitrator included in the list. If there are to be three 24

MARCH • APRIL 2022

arbitrators, we look at our international and life sciences panels and begin to prepare a list of 15 names, which we send to the parties along with their CVs. The parties can then object and remove anyone from the list without the need to provide any reasons. They then number the remaining arbitrators in their order of preference and send their respective lists back to the ICDR without exchanging them. The ICDR combines the lists and invites the arbitrators with the lowest combined numbers (which reflect the highest preference of both parties) to serve.

We tell them a little bit about the identities of the parties so they can conduct an initial conflicts check. If they get through that, we will go through an official appointment process, which involves their answering questions regarding disclosures. After clearing that, we officially confirm them to the case.

We also look at diversity when preparing the international list. We make sure that we have diverse members in our international panel and life science panel as our users have told us that is an important consideration for them.

The ICDR has signed the Equal Representation Pledge in Arbitration.

What’s your criteria for determining a life sciences panel for the arbitrators?

Martinez: First, I want to invite your readers to look at our life sciences banner on adr.org or icdr.org. It shows the work that the AAA-ICDR has done to focus on the ADR needs of the Life Sciences business sector. There you can find information on the cases, the rules the specialized panel where we look for legal practitioners or industry professionals with a minimum of 10 years of significant experience, which we define as devoting more than 50 percent one’s time to pharmaceuticals, biotechnology, biomedical technologies or medical devices. Additional criteria is for the applicant to have one or more of the following qualifications: experience with related mergers and acquisitions, joint ventures, partnerships, licensing, research and development. We also consider experience in the areas of intellectual property rights, regulatory, preclinical, and clinical development, as well as

supplementary information brought to our attention. We talk to our advisors about each applicant and make sure that their qualifications meet our criteria and are arbitrators that we think would meet our user’s expectations for a list that the AAA-ICDR would prepare for a particular life sciences dispute.

What are some of the attractive features of the ICDR’s rules for international cases?

Martinez: Before addressing that, let me say that, in the international context, we find mediation to be a really great tool to incorporate in your alternative dispute resolution process. You see it in escalation clauses, where the parties may decide to negotiate for a period first, then they go to mediation for a set period and then go to arbitration. We would like to see an increase in the use of mediation because it really is a win-win.

At the end of the day in mediation, the parties have to agree to a settlement. You don’t have to risk an arbitration award going against you. You are actually participating and have control over the eventual settlement. I have found that in

the international context, where parties may be really far apart and angry at each other and not seeing past their own interests, that mediation offers them an opportunity to hear the other side’s particular views on the case. With experienced mediators, whether they take an evaluative or a facilitative approach, they can have the parties now talking to each other, exploring the strengths and weaknesses of each of their respective cases.

If they don’t reach a full settlement, they may settle some of the elements of the dispute, leaving less for the arbitration.

It’s always been a win-win. And if they do reach a settlement, they just saved a tremendous amount of time and costs and perhaps preserved a valuable business relationship.

That’s why when we did our last revision of the term rules that went into effect March of last year, we started off with revising the mediation rules and we changed the presumption. It used to be we offered mediation in all cases.

Now the presumption is that mediation will take place concurrently with the arbitration. Once an arbitration is filed, we point to the rule that says the mediation will in fact take place. If the parties are not interested, they have to opt out of the mediation. We think that making it an obligatory part of the process has really helped. No side has to fear, “If I offer mediation, perhaps the other side will think my case is weak; that it’ll put me in a negative position,” because everybody’s going into the mediation.

To your question about the international rules, we revised the international mediation procedures to make mediation more attractive, such as new language to help with enforcement of mediation awards. International arbitration rules follow international practice, which is different from commercial practice and the courts. For example, you don’t have discovery per se. Remember, these are cases that could involve parties from common law and civil law countries. The exchange of information through discovery as used in US courts is not considered appropriate for cases pursuant to the international rules.

Requests for documents must be narrowly tailored and limited to documents you believe to exist. There are no phishing expeditions and the exchange of documents must be conducted in the most economical manner.

CORPORATE COUNSEL BUSINESS JOURNAL

25

The international rules preclude an award of punitive damages unless the parties agree otherwise. In other words, when you draft an arbitration clause that specifies the international rules, you will not be getting punitive damages unless you actually opt into them. Another important tool available under the international rules include a new article on early disposition to narrow the matters before the tribunal. You may take a position that there’s something that you think hasn’t been properly proved up and you want to have an early disposition regarding that particular component of the dispute. Under existing rules, you also have access to an emergency arbitrator mechanism. We were the first institution to introduce that, back in 2006.

Prior to that, if you needed some emergency relief, a provisional or conservatory measure, you had to wait for the arbitrators to be appointed, which could a couple months or more or turn to the courts which was inconsistent with your desire to use international arbitration and stay out of each other’s courts. Now, if you need some emergency relief at the time of filing, the process is all laid out there for having an emergency arbitrator appointed, and it’s been used quite often in the life sciences context. Other ways we expedite the process are through firm deadlines and a sensitivity to time and costs.

Under our expedited rules, once the hearing is closed, you should have your award in 30 days if you must or 60 days under the commercial rules. In sum, the ICDR Rules are reflective of the current best practices in international arbitration.

I’d also like to add that in international arbitration, the seat or place of arbitrations is important because while the parties and the arbitrators can hold hearings in other places for convenience, etc., the award must be issued in the seat that was selected by the parties. In fact, we include such language in the award because in the New York Convention, for example, the US has taken a reservation to that treaty that it will enforce the awards based on reciprocity. So it has to be in a New York Convention country. In addition the seat dictates the procedural law of the arbitration and can be called into play when an issue arises that may not be covered in the arbitration rules and which national courts will have jurisdiction to deal with issues related to 26

MARCH • APRIL 2022

the arbitration process. For example, New York is a seat that is frequently selected by the parties for international arbitrations because it has a developed arbitration culture.

The judiciary is supportive of international arbitration.

They enforce international arbitration awards regularly and are supportive of the process. At the end of the day, the seat is part of the negotiation. You may have two multinationals from very powerful jurisdictions and they are each going to negotiate. They may wish to have the case placed in their own country for various reasons. Although again, with virtual hearings, we are also finding that with these hearings occurring virtually it is not as important as it once was before for procedural implications. 

Luis M. Martinez is Vice President of the International Centre for Dispute Resolution, (ICDR) the international division of the American Arbitration Association, (AAA) and is an Honorary President of the Inter-American Commercial Arbitration Commission, (IACAC).

Luis serves as an integral part of the ICDR's international strategy team and is responsible for international arbitration and mediation business development for the East Coast of the United States (from Maine to Florida), Central and South America, the Caribbean, EU and UK. Reach him at martinezl@adr.org

Michelle Skipper is Vice President for the Commercial Division at the American Arbitration Association in Charlotte, NC. She received her undergraduate degree in Finance from the University of Texas – San Antonio and her M.B.A. from the McColl Scholl of Business at Queens University in Charlotte, NC. Michelle is responsible for the case management of large, complex commercial arbitrations for the mid-Atlantic regions. Reach her at skipperm@adr.org

Perspectives from a Recovering Litigator, Now Turned Board Member SYLVIA KERRIGAN KBH CENTER FOR ENERGY Sylvia Kerrigan, a former litigator, with over a decade of boardroom experience under her belt, shares her career trajectory and insights on corporate culture and leadership.

CCBJ: You have tremendous experience—as a litigator, a general counsel, a public company director, and an executive director for a higher education energy center.

What led you to join the boards that you’re on, and was serving as executive vice president, general counsel and secretary of Marathon Oil Corp. a springboard for joining them?

Sylvia Kerrigan: I was happily beavering away as a litigator at a law firm when one of my clients, Marathon, asked me if I wanted to come in-house and do what I was doing for them

outside. Once you’re in-house, you have a very different practice, and it changed my career, my perspective and my entire view on life. In-house, I really had to become more of a generalist; to align more with my clients rather than being an intellectual purist or an expert within a particular silo.

That was my path to the C-suite—working offshore with the drillers and the guys on the platforms and pads. I learned the business from them. When I got to the C-suite, though, I had to learn a whole new set of skills because there, work is conducted in the language of finance and not in the language of law. That was sort of a second, entirely different career.

A third aspect of my career was learning what it’s like to govern a public company. I saw how exciting and strategic it all was; how all the issues you read about in Corporate Counsel magazine are really front and center in board members’ minds. I realized I wanted to be on a board and CORPORATE COUNSEL BUSINESS JOURNAL

27

my boss at the time, Clarence Cazalot, allowed me to do that while continuing to be general counsel. When I retired from Marathon, after about 10 years in the C-suite, I was already on one board and soon thereafter, I was asked to join a second.

Now I’m lucky enough to have four boards under my belt—and I’m embarking on another journey, one in the higher education world. Whether you’re on a technical track and you need to understand geopolitics and regulations, or you’re on the legal side and you really need to understand the language of business, there’s so much cross-pollination in our increasingly complex world.

The best corporations, and the best boards, work best when you have a mixture of those skills; when everybody has their own area of expertise, but everybody also understands everyone else’s perspective. I hope both students and people with established careers can benefit from that idea.

That’s really fantastic, because I know through WCD (WomenCorporateDirectors) that corporate boards covet sitting senior executives. Tell us about your leadership style and who or what has influenced it.

I’ll start with the end and then go to the beginning of that question. I’d say everybody influences my leadership style because I think that there shouldn’t be any single style.

Unless there’s just one personality type in the world, and I’m not aware of that being the case, I think the most successful leaders try to supply whatever is necessary to bring out the best in the people they work with. There are people who work best on their own, people who work best in teams. There are people who are disruptive and some of them need to be brought along more directly, while others are self-correcting if they realize that they’re disappointing their peers.

It all depends on the group dynamic. If I were going to sum up my leadership style in two words it would be flexible and responsive.

28

MARCH • APRIL 2022

What qualities do you look for when you’re hiring new people for your teams?

In my opinion—and I didn’t coin this phrase; it was made famous by a football coach—the greatest ability is availability. I look for people who show up. I look for people who try their hardest. Whether they know what they’re doing or not, if they’re trying their hardest, I’m willing to work with them. I also like people who have a little bit of humility about w hat they don’t know, because there’s no shame in that. The only shame is in pretending to know what you don’t know—and taking everybody down the rabbit hole with you.

How would you describe the culture of your organization? You can answer from the perspective of Marathon, the corporate boards you’re on, or the Kay Bailey Hutchinson Center.

I really appreciate what happened late in my career at Marathon, which was a growing recognition of the importance of diversity, inclusion, belonging—all things that have upended typical corporate hierarchies. Many business books talk about the four quadrants of company culture. As long as you have people in all four of these quadrants, you’re generally doing well.

On the other hand, you can’t build a culture based on just one or two quadrants, and at the beginning of my career, I think that’s what people did. You would have the engineeringrun company, or the private equity-backed company, or whatever the case may be. And your law firms would be an entirely different culture as well. When I went to the United Nations in 2000, it was my first leadership job. I was part of a team evaluating the claims that arose out of Iraq’s invasion of Kuwait. You couldn’t do that with just lawyers. We had a reservoir engineer. We had a forensic accountant. We had an asset valuation expert from Lloyd’s of London.

The team’s interdisciplinary nature was key; each member approaching this problem from a different

angle. If you try to impose a single culture, you diminish the higher end of the group’s potential because you’re basically settling for a norm instead of letting each member be the best at what they are.

What an incredible experience that must have been.

Oh my gosh, yes. And as a woman, it was an opportunity to go work in the Middle East, where women were not given many public leadership roles at the time, though that certainly is changing and I’m so grateful for it. There were countries that asked me to not act as the leader when I was in-country; that my second in command should appear to head the team.

And I give the United Nations credit for responding, "If you won’t respect our team culture, then we won’t come to your country. And the burden of proof is on you to establish that you’re entitled to this money, so if we don’t come to your country, it will impact your ability to prove that." That was kind of an early lesson for me in why you can’t just cram everybody into a single paradigm. The UN backed me up as an individual. I hope I learned that lesson and can pass it on to others as well.

Does that apply as well to your board service and/or your work for KBH? Absolutely. Board service is a microcosm of any team, but on steroids. You’re dealing with the biggest issues, but with a very small team. Typically boards are 7 or 8 people. I’ve been privileged to be around some very intellectually gifted, accomplished people, and if everyone’s trying to evaluate the same problem with a different set of skills, hopefully you will reflect all of the aspects of the issue and come up with the best solution.

The KBH Center is built on the concept of interdisciplinary cross-functioning as well. That’s why it’s sponsored by more than one school—the McCombs Business School and the University of Texas School of Law. We’re working on bringing other UT schools under the same tent so we can create that true partnership and avoid the siloed mentality that we may have had in the past.

The benefits of interdisciplinary approach and letting everyone shine seem inarguable, but a lot of leaders can’t manage that. The fact that you can is a testament to who you are as a person and a leader.

CORPORATE COUNSEL BUSINESS JOURNAL

29

The greatest ability is availability. I look for people who show up. I look for people who try their hardest.

Whatever the case may be, I have a lot of humility, because I have a lot to be humble about. We all have a lot to be humble about. And if we forget that, then we shut down people who may be able to teach us something.

Absolutely. Speaking of teachers, what is the best career advice you’ve ever received?

When I became general counsel at Marathon, the head of HR told me that what had gotten me there wouldn’t keep me there. That was another one of those aha moments when I realized it’s not enough to be the best version of yourself; you also have to be responsive to others.

What changes would you like to see within the legal profession?

Now that I’m on boards, I view lawyers in a different way.

Actually, that started as soon as I joined a corporation and continued when I was in the C-suite. Over the years, I grew frustrated by lawyers who were good at their narrow subject matter but had no perspective about how they fit into the bigger picture. And this plays out in everything from being inflexible when trying to generate multiple solutions, to not understanding one’s own value proposition.

For example, I’m a recovering litigator. But there are people who will always want to litigate on principle. Even if that’s not you, some of those people may be your clients. You have to ask yourself: Is this a fight that’s worth the money, because lawyers (and I say this as a lawyer) are often horrendously overpriced compared to the value that can be created from the output of their work. Appreciating how

30

MARCH • APRIL 2022

to how to get as close to the goal line as you can with the most reasonable expenditure of funds that you can—really understanding that proportionality—is a perspective I wish I could give everybody. That’s something I’ve learned that I wish I’d understood better when I started out my career.

We can’t end without mentioning the pandemic and what you think the future holds.

The pandemic has changed us, hasn’t it? If we didn’t know we had to be flexible before, we sure know that now. Necessity’s the mother of invention, they say, and I think that’s certainly been proven true. Here we are on Zoom and I feel like you and I have caught up in a way that we couldn’t have done before the pandemic. And just as we’ve both grown comfortable with this format, I think teams have grown comfortable with a more hybrid approach to working and learning. I also see the potential of cascading that out to people who don’t have immediate access to educational opportunities, career opportunities. Covid was a crisis, but it was also a liminal event—a transitional stage of a process: there was a before and there will be an after—and you have to embrace whatever good might have come from that, and not just try to go Sylvia Kerrigan has over a decade of experience in the board room as a back to before.

Absolutely. As a friend and colleague recently said to me, "The past no longer is predictive of the future, given what we’ve all been through."

Thank you so much for your time. 

director and former executive for the industrial, transportation and energy sectors. In addition to her leadership roles at various capital-intensive enterprises, her board expertise includes environmental, social and governance (ESG), regulatory, risk management, cybersecurity and information privacy matters. Reach her at sylviakerrigan@yahoo.com

A View from the Top of Wolters Kluwer ATUL DUBEY WOLTERS KLUWER LEGAL & REGULATORY US

 Atul Dubey, newly appointed Senior Vice President and General Manager of Wolters Kluwer Legal & Regulatory, US, joined CCBJ for a discussion about his new role, his vision for the continued growth of the company along with insights about customer-focused innovation.

CCBJ: Can you share a bit about your background with our readers?

Atul Dubey: I was born in India, where I grew up and trained as an engineer before moving to the U.S. I’m a mechanical engineer by training. Coincidentally, my last two predecessors who led Wolters Kluwer’s Legal and Regulatory U.S. business were also engineers. I came to the US to earn my MBA from Carnegie Mellon. I then worked in a pharma company for a couple of years, and then spent a decade at Booz Allen doing strategic consulting for global clients, specializing in healthcare and financial services. I worked at Citigroup for nine years in their asset servicing business – through the global financial crisis.

After that, I joined Standard & Poor’s Ratings business as the global Head of Transformation in the aftermath of the crisis. My next position as Wolters Kluwer’s global head of strategy was to help our Executive Board in driving our transformation to an expert solution (software) company, which included M&A, Innovation, external web portal transformation, GTM and growth strategies. I held the Chief Strategy Officer position until I was appointed to my current role. So that’s my CV in a nutshell.

What initially drew you to Wolters Kluwer and what’s kept you there?

After my time at S&P, I was contemplating what to do next. I almost decided to go back to banking but, through my network, I was approached about the opportunity at Wolters Kluwer. That led to a meeting with Nancy McKinstry, our CEO, who is quite charismatic and has transformed the company significantly. She said that Wolters Kluwer had become a digital company, and next she wanted for it to become an expert solutions company.

That aspect of the company’s transformation intrigued me.

I’d worked across tech, fintech and advanced technologies before coming here, and I was eager to apply my knowledge and skills to the company’s next evolution and is visible in our trajectory over the last decade.

My style combines strategic thinking with transformative execution, so I thought it’d be a good fit—and it has turned out well. We are changing the company to better position it as a provider of very specialized solutions that supply expert guidance to the experts. That’s what we do for professionals in the legal, medical, compliance, and tax and accounting spaces. It’s quite a diversified business and it’s kept me busy, interested, and learning all the time, and has allowed me to apply my skill sets. That’s what brought me here and keeps me here.

Your recent appointment to the role of general manager of Wolters Kluwer Legal and Regulatory U.S. is exciting news. What can you tell us about this new role and your hopes and expectations—for you personally, as well as the continued development of the company?

During two of my years at Citigroup during the financial crisis, I was working on strategy for a wide variety of international businesses with operations across around the world – but for the other seven years, I was in an operating role for a specific division. From there I went to S&P to lead transformation, which was also a very handson role. Here at Wolters Kluwer, I’ve been in what is largely a “strategy” or “transformative” role. But I did miss the day-to-day operational aspects of actually implementing the change directly.

We are an ambitious business, and many of the strategies we’ve talked about have been implemented – that has been immensely satisfying. Our company’s market cap has also increased dramatically in the past few years, so I’m very pleased about that – but I was still missing something, and that was an operational role. Somewhere in the middle of the pandemic, when everyone was reflecting on their career path forward, I raised it with our CEO, adding that I was eager to be part of the transformational change propelled by the pandemic.

CORPORATE COUNSEL BUSINESS JOURNAL

31

Then this opportunity presented itself and I took it.

This is an extraordinary leadership opportunity. How would you describe your leadership style, and who or what influenced it?

Yes, this is indeed my latest and greatest leadership opportunity, and my primary goal is to be a good steward for this business. You can call it a business but in my mind it’s a portfolio of a lot of talented people, front to back, producing content, services, and software. The first part of my work is to do no harm. The second is to continue to nurture the business, innovate where we need to, advance our products and services, and leave it in even better shape than I found it.

In short, I want to continue down the track of making it more relevant to our customers and also to the parent company.

32

MARCH • APRIL 2022

What kind of leadership style will that require? In some instances, I’ll have to delegate. In others, I’ll have to lead by example, which is my typical M.O. We have a diverse set of offerings within this business, each of which needs a different kind of touch. So, my leadership style will vary based on the situation and will be informed by my experience leading our teams and talent forward into the future. I’ve spent a lot of time outside of content and information services, and have a lot to learn, but also bring in new perspectives. And I have had very good bosses and mentors. I’m also continually inspired by the leadership of the New York Hall of Science, where I’m privileged to be on the board.

Now that you are focusing on the legal industry, what are your hopes for the future of the profession more broadly?

The 2021 Wolters Kluwer Future Ready Lawyers Survey included inputs from both corporate legal departments (CLDs) and law firms, and it yielded a lot of different insights. There are some commonalities for both CLDs and law firms around adoption of technology, driving efficiency, getting to better outcomes, increasing specialization, and fostering better collaboration with customers (external for law firms; internal for in-house law departments).

For CLDs, challenges will include how to partner with procurement, sales, the CFO, audits, and with the many things happening in the world that impact a firm’s legal position or legal risk (like the pandemic or cybersecurity, privacy to name a few). General counsels have more things they need to keep their eye on, get involved in, and make decisions about. It’s going to be a more complex world where there will be more asked of the legal department and the law firms that serve them. That’s a boiled-down version of the survey. I’d encourage everyone to read through it – there are some very good insights in there.

We’ve heard many nice things about your strategic focus and technical expertise, as well as your commitment to “customer-focused innovation.” Can you share your thoughts on what that means to you and Wolters Kluwer?

I think I can break that phrase down into “customer focused” and then “innovation.” The work I’ve done throughout my career speaks to the fact that innovation is near and dear to my heart. Throughout my professional career, customer focus has also featured prominently in my work. You start with the customer’s needs, both articulated and unarticulated, and then work your way backwards from there, thinking about how your current platforms and services are meeting those needs, and keep the competition in mind. It’s important to consider what else you can do to better address those needs and meet your customers where they are – and while you should understand where their business is going, you don’t want to be too far ahead of them or too far behind them. You have to maintain this pace with your customers and then everything sort of clicks into place. I have a very customer-first mindset,

and it has served me, my colleagues, and the endeavors I have undertaken very well.

I also keep a constant eye on the competition. We have quite formidable competitors in our spaces, but our customer focus is key to our company priorities and growth plans.

It’s important to align our product development, product transformation, and the capabilities we have been investing in with what the customer needs, or may need in the future, and that drives our innovation efforts and the advancement of our offerings – and continue to be the very best at what we do in our areas of specialization. That’s why I break that phrase down into its two components: to show how integral they are to one another and our mission.

What role do you see Wolters Kluwer playing in the evolution of the legal profession?

Wolters Kluwer will continue to be a premier provider in the legal space, not only for law firms but also for corporate legal departments. We provide very focused content to the CLDs and want to deliver more cross-border content through our Kluwer Law International (KLI) brand. We also have sister businesses focused on spend and matter management which serve Atul Dubey is the head of Wolters the upper end of the Kluwer’s Legal and Regulatory U.S., market — large CLDs that a leading provider of information have a very high legal and expert solutions for legal and intensity and external business compliance professionals.

In this role, he focuses on growing legal spend. There is also the business by driving increased a market for our insights relevance for customers through among the mid-tier and digital products and expert solutions smaller CLDs – which are leveraging technologies like NLP/AI more compact, have more and modern workflows. Reach him at Atul.Dubey@wolterskluwer.com . on their hands, and have less external legal spend

CORPORATE COUNSEL BUSINESS JOURNAL

33

– that are looking to become more effective, connected, and collaborative.

precise and actionable content, as well as insights and analytics coming out of that content.

In addition, we intend to further scale our Legisway legal management software. It is already very successful in Europe, and we hope to provide it to more and more CLDs in the U.S. So those are the type of things we are going to bring to the market: more focused insights, digital with hopefully some analytics, and also what I call a workflowbased platform that allows for better collaboration in places like contract life cycle management, IP management, entity management, business collaboration tools and so forth.

Our goal is two-fold: to make sure that our customers are more effective at getting to outcomes for their customers, and to embed ourselves in the workflow of the legal community, be it on the content side or on the operations side. Over the past few years, we have seen the emergence of the legal operations professional within CLDs – and as they continue to become more prevalent and being change agents, we can expect to see in-house departments start to run more like other corporate functions, and apply more structure, business processes & KPIs, and leverage technology to drive more transparency and reduce internal friction. Increasingly, law departments are being looked to for more decision-making and facilitations as a key player in the corporate core. Expect for Wolters Kluwer to be here with more expert solutions and digital tools to help them get to better outcomes. 

Demand for what we have to offer will continue at a steady pace, driven by the information explosion and increased regulation in the U.S. and around the world. ESG is another new thematic, with Europe leading the U.S. in promulgating policies and regulations. There’s a lot on the plates of legal professionals, and our intent is to serve them with more 34

MARCH • APRIL 2022

Making Crypto Available to Everyone TOM DAVIS COINME

 Tom Davis, a former FBI Special Agent and fraud

prevention and AML/KYC compliance expert, recently joined Coinme as their first general counsel. He shares why he joined this startup and his hopes for how to make an impact as this new normal of banking evolves.

CCBJ: Can you give us a little bit on your background and what brought you into the legal space?

Tom Davis: I’ve been a licensed attorney for over 27 years.

I’m probably one of the few attorneys in the United States that’s licensed in Washington, Oregon, and Alabama. 27 years ago, I was working as a trial attorney for a law firm in Alabama when I was recruited by the Federal Bureau of Investigation. At that time, they were very interested in lawyers becoming special agents, which is something I’d always wanted to do for all the typical reasons. After a very lengthy application process, as I’m sure you can imagine, I was assigned to work for a white-collar squad in Seattle.

That’s how I moved out west.

Since that time, I’ve parlayed my early litigation and investigation experience into non-traditional legal jobs. I knew early on I wasn’t cut out to be a traditional attorney.

What I was interested in was internal investigations.

Corporate malfeasance, embezzlement, things that were happening inside very large corporations that required attention. The Big Four accounting firms were very interested in my type of background because stories like Enron were popping up back in that day. Long story short, I was at KPMG and Grant Thornton and then as a partner at Moss Adams, where I led nationwide litigation, forensic and investigation practices.

Despite all the training I’d received and the various interesting engagements I’d been involved in, I did want to return to a legal role, but I wanted to do it in-house, as a general counsel. I became a corporate counsel for a Seattle

startup called Airbiquity and eventually became its general counsel. I was there for approximately 10 years. Much like Coinme, I was the company’s first in-house legal resource.

Airbiquity was the first technology provider that allowed cars to talk to call center like OnStar. Airbiquity was one of the first that enabled telematics communication technology.

I had a couple of interesting jobs after that, all of which prepared me for my current job. One was vice president of operations and fraud prevention at Garden City Group (GCG) since acquired by Epiq legal services. GCG was the world’s largest third-party administrator of cash action settlements, so part of my job, in addition to running particular cases, was fraud prevention, which can be pretty significant in the class action world. Think about all the class action notices you get as a consumer and how that could be leveraged by fraudsters. I also ran the anti-money laundering program at GCG to monitor suspicious or illegal transactions. From there I went to IBM, where I spent six years in fraud prevention and AML solutions for some of the top banks in the world. That experience led me to Coinme.

Where I’m leveraging my background as an in-house resource, but also, relative to cryptocurrency exchange, my experience with compliance, money laundering, and fraud prevention, specifically.

What drew you to Coinme? How do you see yourself helping fuel the success of this business?

In my wanting to get back to a purely legal role, there were some boxes that I wanted to check. One is I wanted a startup environment because I missed the excitement of that and being a part of things at the ground level. While Coinme isn’t really a startup (it’s been around since 2014), I like the fact that it has a very established ATM network.

Our partnerships with Coinstar and MoneyGram, are already extremely mature. I liked the fact that the meter’s already running here.

What also attracted me to Coinme is my interest, from an CORPORATE COUNSEL BUSINESS JOURNAL

35

Right now, we're strictly cash-to-crypto.

As we go to full digital buying and selling, that's going to involve a whole new playbook for legal and compliance. investment standpoint, in cryptocurrency. The story behind it, and specifically around Bitcoin, is really fascinating.

But irrespective of one’s feelings about crypto, or its viability, future, or economics, what I like about Coinme is that it is creating revenue while we sleep. Right now, it is cash-centric, although we are moving to digital plays in the future here very quickly). It created a platform for the unbanked, the folks that are unable to get bank accounts.

Coinme offers them a foundation to do banking via cash. So I like our business model and that it makes crypto available to everyone.

What challenges do you anticipate in this new role, and as this facet of banking matures?

There are going to be some unique challenges. I mean, first, because of its “startup” aspect, and I use startup in quotes based on my previous answer. I don’t see anything unique to Coinme as far as startups. But startups generally are moving at a thousand miles an hour these days and putting out the brush fires that are in front of you and then, as the company matures, bringing in general counsel to create a compliance framework that addresses things before they become brush fires.

That’s what I’m doing; meeting with all the department heads, understanding how they’re operating, what are their policies and procedures—from compliance to operations to marketing to sales. Then, dovetailing how we’re currently doing things with what I know to be the right way to do things in a legally compliant manner. I’m offering changes at a macro level and thus far everybody is very open to that. And in the process, I’m learning a lot 36

MARCH • APRIL 2022

about the operations of Coinme.

Secondly is the cryptocurrency aspect and, more specifically, our licenses to be a cryptocurrency exchange. I mean, that is a heavily regulated environment and making sure our licenses are up to snuff and our examinations are clean and the regulators know and understand what we’re doing. That’s a large part of my job as general counsel. One of the biggest goals I had in coming in here was to establish an excellent, transparent relationship with compliance.

When I arrived, we did not have a CCO. We had an interim CCO who was doing a great job, but one of the boxes I really needed to check was helping bring in a good qualified CCO, which we have done.

In fact, our new CCO, Brian Reisbeck, starts today. I haven’t inundated him yet with the 22 things he and I need to talk about, but just getting a new CCO in place was a big box to check. I’m instantly more comfortable knowing that our compliance team is directed in an appropriate manner. Beyond the GC 101 stuff, there’s the crypto stuff. Our trajectory is skyrocketing and a large part of why Tom Davis possesses almost I’ve been brought in is three decades of experience as an to help spearhead some accomplished attorney, FBI Special very important strategic Agent and fraud prevention and commercial deals and AML/KYC compliance expert. Tom Davis is Coinme's first General partnerships that are going Counsel and Corporate Secretary. to allow our continued Coinme is ramping up for rapid growth and success. I’m domestic, international, and very excited about those horizontal product expansion. types of discussions and Throughout his career, he’s held leadership positions at legal letting the world know and technology firms to combat about some other things financial crimes and direct legal that Coinme’s going to be compliance. Reach him at doing in the future. I’m a tom.davis@coinme.com busy boy.

Are there parallels to online betting, another market that is expected to expand in the future?

You have your new CCO. What other key elements do you envision for the Legal and Compliance Departments?

Online betting is going to be huge. It’s pretty much brand new; I mean two, three years ago, it never even existed as a legalized function in most states. Now it’s legal in many states. How online betting works, and the protocols associated with it have to be described to regulators. The same goes for crypto kiosks. How many ATMs are out there where you can buy Bitcoin? Not very many. We’re having to describe how it works and the controls we have in place. Fortunately, we have excellent partners in Coinstar and MoneyGram. They’re equally up to the task of making sure this is handled in a consumer-friendly way. So much like online gaming, we’re doing a bit of education for the regulators.

It’s going to depend on what we’re doing as far as productization going forward. Right now, we’re strictly cash-to-crypto. But as we go to full digital buying and selling of assets, that’s going to involve a whole new playbook for both Legal and Compliance. Brian and I are basically starting at the same time. We understand the product roadmaps going forward and we’re going to be advising on that. New products will need to be rolled out in a compliant and consumerfriendly way. I’m also working on - and we’ll need to get Brian quickly up to speed here - on our advertising and our Google ads and our T&Cs; making sure that they are crisp and clear and adhere to all FTC guidelines regarding how we communicate with our customers and potential consumers. 

CORPORATE COUNSEL BUSINESS JOURNAL

37

Are You a Legal Operations Professional?

Be sure to follow InHouseOps.com and @InHouseOps for updates and posts from key industry leaders!

Suggestions or submissions can be sent to our editors at Info@Inhouseops.com.

In-House Ops is published by Law Business Media, publishers of Corporate Counsel Business Journal.

Powered by the LexBlog Network

Ops Use Emerging Technology to Advance Strategic Imperatives SAMANTHA GREEN EPIQ

Recently, the phrase “modern law” has been floating around in the legal industry. But what does this mean and why should today’s practitioners care? From corporate counsel to law firms to contract attorneys, this term of art can carry several meanings. In a nutshell, modern law refers to the idea of taking a businesscentered approach to legal practice by embracing emerging technologies and new partnerships to increase efficiency and make smarter operational decisions.

Collaboration between legal and tech professionals is the driving force towards a new way to practice law.

This could include things like automating administrative tasks so lawyers can focus on higher value work, using contract attorneys to support an in-house department with a large regulatory project, and data mapping to uncover where untapped business intelligence resides.

What does it take to have a modern law approach to practice? Read on to find out.

The Survival of the (Technologically) Fittest Before the digital era, lawyers filled their practice with telephone calls, book research, and exclusively manual document review. Then came email, text, and electronic research tools such as Westlaw and LexisNexis. Now, we are in the era of remote working, artificial intelligence (AI), technology-enabled document review, chat apps, collaboration tools, alternative legal service providers (ALSPs), and more.

No longer should practitioners refer to the “evolution” of legal practice, but instead realize that lawyers who do not embrace modern law will be at a disadvantage.

The field is no longer a level landscape, but mired with CORPORATE COUNSEL BUSINESS JOURNAL

39

new, competitive tools and software meaning only the savvy will survive.

Adopting legal technology and establishing partnerships with skilled tech professionals and vendors is a practice gaining significant traction within the legal sector. It is now the norm and clients are looking for their counsel to offer efficient work products and utilize new automated technologies, all while being cost conscious. The only way to do this is to take the dive into modern law and determine which tools and collaborative opportunities can keep an organization marketable, improve decisionmaking, and essentially help lawyers do more with less while still remaining innovative. While this may seem overwhelming, the best place to start is to determine where internal inefficiencies exist and gauge performance against competitors. Just remember that modernizing practice will look different for each lawyer, legal department, or firm.

Ways to Modernize Legal Practice There are several toolsets available to help lawyers modernize their practice. The key here is to really understand what combination of people, process, and technology will work best for a particular organization.

Modern law is more than just investing in AI solutions or jumping on more video calls. While things like this are a part of modernizing the legal industry, the business decisions behind investments and creating technology-focused, collaborative strategies are what will drive efficiency. Here are some tools organizations should evaluate for use: Pre-built natural language processing AI models This is a new offering that can be ideal for lawyers handling the same type of matters repeatedly, like employment disputes or M&A due diligence. Although most litigation and investigations review work is unique to each case, there are certain aspects that can be pre-modeled when it comes to identifying repeating key language or legal 40

MARCH • APRIL 2022

themes. The idea is that where there are enough common issues, having a “plug and play” or customized model could work. The models will mature as they receive more data input, making this an even more efficient option that can get your team to the most important data sooner. Basically, when a new matter comes along, users can pull from the relevant library where a large chunk of the review process is already complete, and then input the new matter-specific documents that can further train the system. When an organization is set up for use of pre-built NLP AI models, it can get through the basic due diligence much faster, leaving more time to focus on higher value input. In turn, the corporate client values this more impactful additional input and will keep the client happy. Using NLP AI models also gives your law firm an edge as it shows corporate clients your firm is committed to using the latest technology to save time and reduce expenses.

Moving to the cloud A large number of organizations in the legal industry have moved their data to the cloud, which makes sense since cloud storage is cheaper, safer, and generally, more easily accessible. When choosing a cloud solution, it is important to anticipate any information governance implications and proceed accordingly. The most important consideration when reviewing the capabilities of a cloud provider is that there is adequate security to protect sensitive business data. Organizations must also consider accessibility when legal holds are in place or there is a need to pull relevant data to disclose during an investigation or litigation. Additionally, sound information governance policies around cloud usage are required. One example is ensuring that all employees are treating cloud storage in the same manner as they would if the data were stored on an internal network.

Other areas to consider are data retention, disposal of duplicate hard copies, document sharing, and regulatory compliance obligations. Data security is at the forefront

of corporations’ concerns worldwide. Keeping data in a secure cloud environment gives corporate clients reassurance that their data is as safe in your environment as it is in their own.

•

Using advanced AI tools Going beyond the more widely used predictive coding solutions for eDiscovery, there are several other AI tools available that can automate and improve different areas of practice. Some examples are: •

Analytical tools can find the most critical material at the outset of a matter to help teams form legal arguments without sifting manually through each document. Discovering this information sooner improves preparedness and provides new ways to

•

•

leverage it, such as using it to inform the decision to settle or move forward to discovery, before expending significant costs Early Case Assessment tools and workflows evaluate risk to inform strategy and identify the matter’s overall value. Advanced tools can detect sentiment, communication patterns, and hidden connections in ways that search terms and traditional TAR or CAL workflows may not Custodian identification tools can help locate potential legal hold targets to direct preservation, interview, and production efforts AI applied before the review stage can provide insight and direction into search term creation and refinement efforts, guide review protocol and coding strategies, and influence decisions regarding data prioritization and interrogation during review CORPORATE COUNSEL BUSINESS JOURNAL

41

•

•

•

•

Legal analytics software that can help predict success on an issue before a certain judge and make smarter choices about jury or witness selection Solutions for managing class actions every step of the way – from claimant identification to settlement payments Tools allowing in-house counsel to monitor the performance and efficiency of outside counsel to drive decisions about continued partnerships and shine light on deficient workflows that need to be addressed Software that can identify language variations in crossborder matters or mixed language contracts applying to international deals

Alternative Legal Service Providers (ALSPs) Technology on its own is not effective, it takes the right people and processes behind it to be successful. This is easier said than done. Finding the right mix of legal and technical expertise is a daunting, expensive task.

Another difficult task is ensuring that the technology is well-suited to a specific environment, performing consistent updates, and putting the right security around it. To overcome this challenge, using ALSPs has become more popular. They take on the burden of testing all the available technology, hiring the right experts who both understand how it works technically and how it can be used effectively in a legal environment, all while surrounding it with state-of-the-art security. Again, this provides clients with more security and less risk.

These are great examples of the ways legal departments and firms can use technology to help make better business decisions, increase efficiency, manage costs, and remain relevant to clients. As technology capabilities expand, there will be more and more opportunities to modernize your legal practice. Many departments are designating a legal operations team to evaluate how to scale their efforts and boost productivity. Evaluating

42

MARCH • APRIL 2022

technology investments and gathering performance metrics are two key legal operations functions that can provide some insight on how a department is operating and where inefficiencies exist. Now, more than ever, it is crucial to explore the benefits of having specific in-house roles created to help accelerate legal transformation.

Conclusion Put simply, it is time for the legal professionals to embrace relevant technology and change their approach to the practice of law. While being more business-oriented by focusing on efforts such as cost optimization and legal transformation has been a common theme over recent years, the pandemic definitely accelerated this trend by demanding remote work models. As more practitioners become comfortable with legal tech and understand the benefits of these partnerships, the industry will get pushed further into modern law. Keeping an eye on emerging technologies and opportunities to maximize efficiencies or decrease overhead costs are a few ways that Samantha Green is the Director of lawyers can improve their Content Marketing for Epiq. She practice and make better serves as a subject matter expert on all aspects of electronic operational decisions. To discovery, data privacy, and remain successful, it is cybersecurity, drawing on her also important to monitor twenty years of litigation and consulting experience. She has current tech trends and spoken all over the country and reevaluate operational provided over a hundred CLEs needs at regular intervals. on topics relating to eDiscovery, To learn about how Epiq uses AI to support its clients, click here. 

litigation readiness, international data privacy, among many others.

Reach her at sagreen@epiqglobal.com

Looking into Over $150 Billion of Legal Invoices with LegalVIEW Analytics NATHAN CEMENSKA WOLTERS KLUWER ELM SOLUTIONS, INC.

 Nathan Cemenska shares insights drawn from

the LegalVIEW Analytics data warehouse as well as his thoughts on the value of data to fuel bargaining power.

CCBJ: Can you start off by just telling us about your background and current role with WK ELM, and then what brought WK to bring it into fruition?

Nathan Cemenska: I’m Director of Legal Operations and Industry Insights at Wolters Kluwer ELM Solutions, a legal software company. My role mainly has to do with e-billing, although I’m also somewhat involved with a contract lifecycle management product, a legal hold product and various other products. But mostly my job has to do with e-billing matter management, spend management—the financial aspect of corporate law, you might say.

I’ve been doing this for approximately four years. My job, as I see it, is to educate myself, my clients and potential clients about legal operations, trends and best practices.

And the backbone of all that, in my view, is mining data out of WK’s LegalVIEW Analytics’ data warehouse, which is the largest body of legal performance data in the world, with over $150 billion in legal invoices and associated data. Previously, I spent a couple years at Elevate Services, a legal consulting firm, where I was a data analyst embedded in a large corporate law department.

I also worked for Stephanie Corey, one of the CLOC co-founders, for a couple years, doing legal technology procurement, where I demoed over 100 pieces of legal technology. Before that I was a practicing attorney—I still have a valid law license, but no longer practice—and I also have an MBA. So obviously you know the ins and outs of law firm finances and operations. From that perspective, can you talk about how you all decided to originate this report and how you feel it’s going to impact other industries that have been doing this for a lot longer and at a larger scale than other companies or legal departments.

We’re one of the biggest e-billing providers, and while we have all sorts of clients, banking, finance and insurance companies comprise a large part of our client base. So part of the impetus for specifically examining that was demand from those clients. They’re very hungry for data out of LegalVIEW and I do special presentations for them all the time, but we had never done one that was specific to finance.

Previous research I performed featured an industry breakdown showing that banking and financial companies have reduced their outside spend over the past six years by about 15.6 percent. No other industry that we looked at had any sort of consistent reduction like that.

Keep in mind that this is happening during a time period where the AmLaw 100, I believe, increased their revenue by 30 percent and AmLaw Second Hundred firms increased their revenue by about 10 percent. So we see this strange pattern where law firms are becoming quite wealthy, but it doesn’t appear to be due to banking and financial institutions, who are some of the largest purchasers of legal services in the world.

Why do you believe that financial services companies or banks are generally more effective than other areas or industries at containing or capping rate increases?

I think that they have more negotiating power because they’re buying more hours, and the more hours you’re buying, the cheaper you can go, because if you walk away from a deal, that’s a huge amount of business lost. I think that they’re also more sophisticated on average. They’ve invested more in people, process and technology to control costs.

They also have better data. Because they’re so big, they’re talking with all sorts of law firms across the globe and they have a pretty good idea of the kind of deals they can get for different types of work from different types of firms, and that enhances their bargaining position as well. And for some that are big names, law firms love to work for them, especially if the client allows them to be public about the fact that they’re a client.

CORPORATE COUNSEL BUSINESS JOURNAL

43

The last thing that I would say about the report is it shows that banks and finance companies’ rates only went up by 2.8 percent, which was pretty good compared to other industries. That said, the really high rate increases that you see in some of the other industries may look real, but many of those companies put a great deal of pressure on their law firms and actually slashed rates during the pandemic and they had to make up for that in 2021. So it appears to be a huge rate increase, but if you smooth that out over two or three years, it might go away. I haven’t done the analysis, but I suspect that’s the case.

Why do you think banks are paying a premium for legal services?

It’s not totally clear that they are, because the comparisons aren’t apples to apples. Yes, they’re paying higher rates than any other industry, but that’s not apples to apples in terms of the type of legal work that’s being done. I do think some of the work that they’re doing is extremely niche, and we know from economics that when a particular good or service is scarce, the price goes up. So I think in many cases, the reason banks are paying the highest rates is because they’re forced to buy that scarce expertise.

There are some other reasons as well. I think that their use of alternative legal service providers is probably lower than average. My analysis showed that their use of ALSPs 44

MARCH • APRIL 2022

is something like half of what you see in the industry at large. So that probably doesn’t help the average rate they’re paying for people.

And the historical relationships that clients have with law firms also keep rates higher than they might be otherwise – for example a tendency to use the law firm that’s physically located near you, with attorneys that you know, or that you went to law school with. The geographic correlation and the type of timekeepers you tend to use probably doesn’t help banks. If your company is based out of South Dakota and your in-house attorneys are using South Dakota firms, that’s probably cheaper than if you’re based out of Manhattan and your in-house attorneys are using Manhattan attorneys.

Can you talk about what financial services firms can do to save on legal services going forward? And this is outside the scope of the report, I know, but is there anything you’d like to impart to readers in other industries that they might take away as they try to mature their organizations?

To answer your last question first: Don’t underestimate your bargaining power. There’s data from Altman Weil showing that a large percentage of law firm revenue still comes from undiscounted rates. While some of that might be smaller companies that lack bargaining power, there are also bigger organizations out there buying legal that

Companies could adopt a 'minimum viable vendor' policy. When a case comes in, don't automatically hire a top 50 law firm.

underestimate their bargaining power. What I’ve heard is that if you just ask for 10 percent off, you’re going to get 10 percent off just for asking.

In terms of what financial companies can do to save more— and I think this doesn’t just apply to them, but to everybody— the most potent thing in my opinion is probably methods that scale. If you look at a lot of the things that people talk about, like AFAs and budgets, those things are powerful but they’re largely bespoke. You must do them on a matter-by-matter basis, and they’re relatively high maintenance. When you establish the budget, you must monitor it and it has to be revised. An AFA has to be renegotiated many times. That’s a lot of work. While I would not discourage people from doing these things, there may be other strategies that you can deploy that are lower maintenance, that pay dividends in the long run and scale, applying equally to the largest legal matters and the smallest.

I would include quick-pay arrangements and late penalties on invoices sent outside deadlines specified in billing guidelines. For example, if a law firm submits an invoice three months late. Engaging the services of a trusted partner to perform outsourced invoice review can also help companies drive savings. There’s a lot of movement on outsourced invoice review right now. Companies like ours are starting to do artificial intelligence-assisted legal invoice review, and we’re saving our clients a lot of money.

So probably the number one thing companies could do is those turnkey, scalable ways to save money. The second thing, which I don’t think many are doing but I’ve spoken

to some who are, is what I would call a “minimum viable vendor” policy. When a case comes in, don’t automatically hire a top 50 law firm. Instead, train your people to have the discernment to ask themselves, “How much risk is really here? How much is really at stake? Do I really need to hire an AmLaw 10, AmLaw 20, Am Law 50 firm? Or can I achieve the desired results with an AmLaw 195 firm?”

I think that more companies should break vendors up into different tiers and train in-house attorneys to hire from the appropriate tier, maybe even have some sort of decision tree that helps them hire a firm that’s most appropriate based on the organization’s risk tolerance. I think you can save a lot of money by doing that.

I also think that external-rate benchmarking is important. I’ve done some internal polls. They were not a huge sample size, but they were enough to be valid and they showed that something like 60 to 70 percent of our clients were benchmarking rates with new law firms that they’re dealing with against their own internal historical data from other law firms, but only like 20 or 30 percent of them were doing any sort of external rate benchmarking. And the info is out there, like our company’s Real Rate Report, which is probably the leading source of data on that subject.

Even if you think you’re getting a good deal based Nathan Cemenska is the Director on your own historical of Legal Operations and Industry data, how do you know Insights at Wolters Kluwer's ELM that you’re not out in Solutions. He previously worked in left field, at least some management consultancy helping of the time? Using the GCs improve law department performance and has prior Real Rate Report or other experience as a legal operations sources of external rate business analyst. Reach him at benchmarking provides nathan.cemenska@wolterskluwer. a dependable point of com. reference. 

CORPORATE COUNSEL BUSINESS JOURNAL

45

The Fourth Floor: A Platform for Founders and Funders BREEN SULLIVAN THE FOURTH FLOOR

 Breen Sullivan, founder and CEO of The Fourth

Floor, shares her journey from a serial startup general counsel to leader of a platform that is breaking ceilings and helping women-led startups gain access to funding and key advisors.

CCBJ: Please share a little bit of your background with us.

Breen Sullivan: My background is as a general counsel for tech startups. For two, I was the first legal hire and built out the legal functions. At the third I was the Chief Administrative Officer, CHRO and General Counsel. As a generalist for tech startups, I started to realize something: in all three companies, male colleagues were angel investing and serving on advisory and governing boards of startups (and getting promoted!) and female colleagues weren’t.

When I tried to find similar ‘under-the-radar’ board and investment opportunities for myself, there was no obvious place to go. As a tech lawyer, I also knew many startups don’t take full advantage of advisory boards or fill all of their open board or observer seats, which means fewer opportunities than there need to be.

We often hear about lack of access for women to public and large company boards but we never seem to hear about lack of access for women to the less sexy, less high profile opportunities, like advisory board positions or smaller company corporate board roles, etc., that more often than not lay the foundation for the kind of networking and professional advancement (and for-profit board experience!) that women need to gain access to larger, more-sought-after opportunities down the road. Access to these ‘feeder’ board opportunities, however, are controlled almost entirely by an invisible and informal network that women typically are not a part of.

Then when I met Katrin de Haën, a serial entrepreneur, I realized women entrepreneurs face similar access issues when it comes to funding and growth opportunities, and don't always have the tools, resources or network to take advantage of the value that advisory board or independent

46

MARCH • APRIL 2022

directors could bring to their startups. It became clear that bringing these two groups of women together who don't frequently meet each other would create a mutually beneficial marketplace that could break open that monopoly.

This insight (and frustration!) led me to create The Fourth Floor to be this new kind of place where women can hack the system, initiate and advance their for-profit board careers, earn equity, and start investing. Right away, we started helping women-led startups find advisors and funding which led us to aggregate women-led startup board opportunities into a board seat exchange accessible to qualified women.

In 2021 we realized two more things: 1). We had created a marketplace for under the radar board and investment opportunities and they were slowly but surely changing the demographics of the pipeline of ‘board-ready candidates’ by getting women on to the boards and cap tables of women-led startups, and 2). It was not enough. We needed to do more.

Women need to be on boards, but they also need funding, and they need to be writing checks. So The Fourth Floor created a ‘Back Room’ for founders, women-led funds, angels and limited partners to encourage women to invest in each other and open up their boards and cap tables as a way to further level the playing field.

When you first conceived of founding The Fourth Floor, what was your general vision and how has that evolved as you've worked with more candidates, investors and founders?

Great question. At the beginning, the value proposition that we were focused on was very clear: the value that women (especially lawyers!) could bring to advisory boards and governing boards of early-stage, women-led startups and the mutual benefits that could be reaped by the exchange.

However, we always knew that we needed to do more and our mission was larger. We want to close the gender wealth and funding gap by diversifying boards and cap tables. We want to get more women on boards, more women funded and more women writing checks. So how do we transform

the value creation circle we built with women founders, candidates and investors into a market solution?

We knew there was potential to drive systemic change on a much larger scale and make a dent in the gender wealth and funding gap if we could incentivize the entire business community- male-led companies included- to commit to tangible steps that would make diversity at the board level a reality and ensure a steady stream of board opportunities and qualified candidates, so that is what drove us to come up with the Pay It Forward Initiative.

Recent moves by NASDAQ (diversify or delist), the Securities and Exchange Commission and players like Goldman Sachs, not to mention the legislation in California requiring board diversity, all suggest we need an efficient, transparent ‘Market Network’ for diverse board candidates sooner rather than later. The Fourth Floor believes it can be that resource and help to accelerate the change that is already in the air.

The Fourth Floor’s Pay It Forward Initiative will spearhead this transformation by enlisting thousands of companies between now and 2025 to take a pledge to close the gender wealth and funding gap by diversifying boardrooms and cap tables. The Initiative kicked off March 29th of this year and is targeting a goal to advance for-profit board careers for 75k women by the end of 2025.

We figured out a way to incentivize companies to think differently about their boards and revolutionize how they measure DE&I: Pay It Forward Partners receive a seal (think Good Housekeeping) and credits for the number of opportunities they create (kind of like carbon off-sets). Prelaunch partners already include CCBJ, NYSERDA, PEWIN, The Innovation Space and Stella Labs, Trulieve, Bright Power, Archetype and Open Grants with many more lining up. The Initiative will officially launch in May. Pay It Forward incentivizes all companies to ‘pull more chairs up to the table,’ bring diversity into their boardroom,

CORPORATE COUNSEL BUSINESS JOURNAL

47

and empower women executives to initiate or advance for-profit board careers all while saving money against the bottom line. Sorry for the shameless plug, but if you are a CEO, CHRO, board member or decision maker, now is the moment to not get left behind! You can take the pledge and start advancing board careers for women right now. If you are interested in nominating yourself for a lifetime Board Candidate Membership or nominating your employer to become a Pay It Forward Partner, learn more on The Fourth Floor website.

As for getting more women funded and more women writing checks, that is the mission of our ‘back room’ investment club. There are a lot of reasons why bringing together women entrepreneurs with women-led funds and accredited investor Board Candidate members just makes sense. Women-led funds need more money in their coffers, women need more access to investment opportunities, and women-led startups need funding. Because women are more likely to invest in women founders and they are more likely to invest aligned with their values, these three networks need to be connected. We have big plans for The 48

MARCH • APRIL 2022

Back Room, but fully exploring its potential will likely not happen until after the Pay It Forward Initiative is in full swing. So stay tuned!

What's your advice to women looking to gain access to board service and/or capital, and what mistakes have you seen rising stars make along the way?

Network, network, network—and understanding that one’s professional network is different from a board network. You need to go outside your comfort zone, to take risks, to meet groups of people who you wouldn't usually meet. That is a really important part of gaining access to for-profit board service and getting started in investing.

When it comes to raising capital as a woman founder, there is no easy path, but women-led funds are three times more likely to invest in women-led ventures, so networking with women who are writing checks of any kind can be extremely helpful. To the extent you can tap into differentiated networks outside of your own closed circle (especially ones that are united with a common mission or purpose

It's incredibly important we put ourselves out there, and that we take risks. connected to getting you funded or getting you on a board), it will be exponentially beneficial.

Women also tend to be more risk adverse than men. It can feel overwhelming starting a board career or an investment portfolio and it is scary! But it's incredibly important we put ourselves out there, and that we take risks. They can be smart risks, educated risks, but we need to jump in and get started. And part of being able to do that is reframing how we think of ourselves. Perfect is the enemy of good.

We're never going to be perfect but we need to believe that we're good enough. There are 10 million board rooms in this country filled with imperfect men- it’s time for some imperfect women to join them at the table!

What are your membership criteria and how does the program work?

At the individual level, we accept the following categories of members: Startup Founders: We accept women and womenidentifying founders and co-founders of early-stage, scalable and growth-oriented startups, idea stage through series B. Founders qualify for a free membership if they list at least one opportunity in our board seat exchange and/or back room investment club.

Board Candidates: In order to join us as a Board Candidate Member, you must have a requisite level of professional experience, which we’ve determined to be at least 10 years, although we also look at the quality of that professional experience and the level of seniority that that person has achieved over the course of their career. You can either purchase a Board Candidate Membership directly from our

platform or you can receive a life-long, free membership as a Board Candidate Nominee through our Pay It Forward Initiative. Eventually we hope to be able to offer free, lifelong Board Candidate membership to all qualified women.

As the number of Pay It Forward Partner companies increase, so will the pool of available nominations to give out. In the interim, we encourage all Board Candidate Members to inform their employer about the Pay It Forward Initiative.

Dream Backers: We are about to start offering a ‘Dream Backer Membership’ for women interested in being a part of The Back Room Investment Club only. This membership is for women who are interested in angel, venture and/ or other kinds of investing. To qualify, women must be accredited investors.

At the company level, we accept the following categories of members: Pay It Forward Partners: Open to all for profit companies Greater Impact Partners: Open to innovation labs, accelerators, funds, B2B businesses, professional service provider organizations, NGOs, Communities, Government Agencies and Associations Women-led Funds: funds that are ‘women-led’ (50% or more owned and operated by a woman).

What are some milestones that you have set for The Fourth Floor?

The largest and most important milestone is the one we gave ourselves for the pay-it-forward initiative. We hope to advance 75,000 for-profit board careers for women by the end of 2025 and to achieve that goal we need to get approximately 15-20k companies to participate in the initiative. We think we can achieve this by forming greater impact partnerships with organizations that can help connect us to hundreds and thousands of potential pay-it-forward partners and also through amplification of this initiative.

CORPORATE COUNSEL BUSINESS JOURNAL

49

The Pay It Forward Initiative is a market solution to a social problem which we think has potential to drive more systemic change in the short term than a legislative solution. Of course we need more legislation like the laws in California and more actions like those taken by NASDAQ and the SEC, but we also need a market approach that incentivizes companies across this country to take a step back and think a little differently about their boards. If the Pay It Forward framework can help companies see some savings against their bottom line, increase diversity in their boardroom, invest in their executive women talent and earn them more business or investment dollars, then they will participate, and by participating, they will help us create new board opportunities and aggregate existing ones into a board seat exchange that will start to shift board demographics in this country.

Membership growth is another milestone and a lot of this goes hand-in-hand with the pay-it-forward initiative.

If we can hit that 75,000 number, it will mean a giant influx of Board Candidate Members at The Fourth Floor.

The same goes for the approximately 20,000 new boardrelated opportunities we have targeted for our Board Seat Exchange. So these are some very big goals.

We also plan to grow our founder and investor membership simultaneously. As our back room investment club grows, we will be able to offer more funding opportunities for women-led ventures and more investment opportunities for women hoping to take the plunge and start investing with a women-led fund or a women-led venture.

Lastly, there are our amplification and messaging milestones. We really want to get the word out there about what is achievable and why it's so important to drive systemic change when it comes to the gender wealth and funding gap in this country—and then worldwide.

On a little bit more of a personal note, we would love to know who and what has influenced you along your professional path.

50

MARCH • APRIL 2022

I was born and raised in Alaska so I've always been a bit of an outsider, especially on the east coast, which is where I have spent much of my adult life. My atypical background and experience has helped me understand there is the way most people do things and then there are other ways to do things. There is always an outside-the-box approach, a way to make that pie bigger.

I also realized early on that you can take control of your narrative and that can get you to a different place. Also, most things are not as bad as they seem and most things are achievable if you really stay focused on that goal and you're open to rolling with the punches and taking alternative routes to get there. I also had a few interesting challenges when I was getting started professionally - I was living in Morocco when 9/11 happened and in New Orleans when Katrina hit. I ended up having an atypical entrée into the legal profession as a result. These experiences taught me flexibility and not just accepting things as they are.

I saw numerous companies where the owners and board members were all white men. You can either just accept that or you can think about it differently.

Why not build an on ramp for women to get on boards immediately? Why do we have to wait?

Four or five time in my life I was forced to find an alternative route to achieve what I wanted. It was always possible then, so why can't the same thing be true here? 

Breen Sullivan is the Founder and CEO of The Fourth Floor, a new kind of tech-enabled community for women founders, board candidates and investors on a mission to drive systemic change by getting women onto the boards and cap tables of women-led startups. Reach her at breen@thefourthfloor.co

LEGAL TECH STARTUP SPOTLIGHT Spotlight on: Onit HQ: Houston, TX # of Employees: 450 Post Valuation: $33.59M Institutional Investors: K1 Investment Management Texas Halo Fund Level Equity Twitter: @onitapps URL: www.onit.com/

95

TH

PERCENTILE

Weekly Growth

Description: Developer of enterprise workflow software and artificial intelligence platforms intended for the legal, compliance, sales, IT, HR and finance departments. The company offers a no-code business process automation platform that primarily focuses on enterprise legal management, matter management, legal spend management, contract lifecycle management and legal holds, enabling clients to digitally transform legal operations by automating processes, reducing costs and maximizing productivity.

Most Recent Financing Status (as of 16-Feb-2022) The company received undisclosed amount of debt financing in the form of a loan from Monroe Capital on December 20, 2021. The funds will be used to support future acquisitions.

Source: Pitchbook (As of Feb. 2022)

To nominate a startup to be featured, email kcalve@ccbjournal.com

THANKS FOR JOINING US! Throughout the Spring of 2022, Corporate Counsel Business Journal has held events across the country, from Beverly Hills to Houston to New York! These events wouldn't be possible without everyone who attends, so we'd like to say thank you!

THANK YOU TO OUR SPONSORS

BUSINESS, LAW & LEADERSHIP CCBJ Perspectives Podcast, hosted by editor & publisher Kristin Calve, provides access to leaders and influencers within the ever-evolving ecosystem of lawyers and legal professionals.

PLEASE VISIT

54

MARCH • APRIL 2022

ccbjournal.com/podcast